Trials@uspto.gov
`571-272-7822
`
` Paper 7
`
`Entered: March 3, 2015
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SPACE EXPLORATION TECHNOLOGIES CORP.,
`Petitioner,
`
`v.
`
`BLUE ORIGIN LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01376
`Patent 8,678,321 B2
`____________
`
`
`
`Before KEN B. BARRETT, HYUN J. JUNG, and CARL M. DEFRANCO,
`Administrative Patent Judges.
`
`DEFRANCO, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
` Paper 7
`
`Entered: March 3, 2015
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SPACE EXPLORATION TECHNOLOGIES CORP.,
`Petitioner,
`
`v.
`
`BLUE ORIGIN LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01376
`Patent 8,678,321 B2
`____________
`
`
`
`Before KEN B. BARRETT, HYUN J. JUNG, and CARL M. DEFRANCO,
`Administrative Patent Judges.
`
`DEFRANCO, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`
`I. INTRODUCTION
`Space Exploration Technologies Corp. (“SpaceX”) filed a Petition
`(“Pet.”) for inter partes review of U.S. Patent No. 8,678,321 B2 (“the ’321
`patent”). The Petition challenges the patentability of claims 1–13 of the
`’321 patent under 35 U.S.C. §§ 102 and 103.1 Blue Origin LLC, the owner
`of the ’321 patent, did not file a Preliminary Response to the Petition. We
`have jurisdiction under 35 U.S.C. § 314(a). After considering the Petition,
`we conclude that SpaceX has demonstrated a reasonable likelihood that it
`would prevail in showing unpatentability of the challenged claims. Thus, we
`institute an inter partes review of claims 1–13 of the ’321 patent.
`II. BACKGROUND
`
`The ’321 Patent
`A.
`Space exploration is expensive, and a reusable launch vehicle
`
`(“RLV”) provides the potential for lower cost access to space. Id. at 1:55–
`2:3. The ’321 patent relates to landing and recovering an RLV at sea. Ex.
`1001, 1:42–45. As disclosed, the RLV performs a controlled landing on a
`sea-going platform in a manner that reduces the amount of reconditioning
`necessary to reuse the RLV in a subsequent launch. Id. at 3:10–13, 5:29–36.
`The RLV comprises a lower, booster stage and an upper, payload stage. Id.
`at 3:13–15. After the RLV lifts off from a coastal launch site, the booster
`stage propels the payload stage to a high-altitude flight profile. Id. at 3:42–
`44, Fig. 1. At a predetermined altitude, the booster stage cuts off its engines
`
`1The remaining claims of the ’321 patent, claims 14 and 15, are the
`subject of another Petition filed by SpaceX in IPR2014-01378. Pet. 1.
`2
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`and separates from the payload stage. Id. at 3:64–66. The booster stage
`takes a trajectory over the ocean for reentry into the earth’s atmosphere,
`while the payload stage proceeds into orbit. Id. at 3:64–4:3. During reentry,
`the booster stage reorients itself into a “tail-first” position as it glides toward
`the sea-going platform. Id. at 4:3–8. Once the booster descends to a suitable
`position over the platform, the engines on the booster stage reignite to slow
`its descent. Id. at 4:51–55. The booster stage then performs a “vertical,
`powered landing” at low speed onto the deck of the sea-going platform. Id.
`at 4:55–57.
`B.
`Challenged Claims
`
`Of the challenged claims, claims 1, 8, and 13 are independent. Claim
`1 is directed to a method for “operating a space launch vehicle,” and claims
`8 and 13 are directed to a method for “transporting a payload to space.”
`Claim 1 is illustrative:
`1.
`A method for operating a space launch vehicle, the
`method comprising:
`
`launching the space vehicle from earth in a nose-first
`orientation, wherein launching the space launch vehicle
`includes igniting one or more rocket engines on the space
`launch vehicle;
`
`reorienting the space launch vehicle to a tail-first
`orientation after launch;
`
`positioning a landing structure in a body of water; and
`
`vertically landing the space launch vehicle on the landing
`structure in the body of water in the tail-first orientation while
`providing thrust from at least one of the one or more rocket
`engines.
`
`Ex. 1001, 8:59–9:4.
`
`3
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`Evidence of Record
`C.
`SpaceX relies upon the following prior art as its basis for challenging
`
`the claims of the ’321 patent, and it also proffers the declaration testimony
`of Dr. Marshall H. Kaplan (Ex. 1016).
`
`References
`Ishijima
`
`Lane
`Mueller
`Kindem
`Waters
`
`Spencer
`
`
`
`Patents/Printed Publications
`Y. Ishijima et al., Re-entry and
`Terminal Guidance for Vertical
`Landing TSTO (Two-Stage to
`Orbit), AIAA GUIDANCE,
`NAVIGATION, AND CONTROL
`CONFERENCE AND EXHIBIT,
`PAPER 98-4120, at 192–200
`U.S. Patent No. 5,873,549
`U.S. Patent No. 5,927,653
`U.S. Patent No. 6,024,006
`J. Waters et al., Test Results of
`an F/A-18 Automatic Carrier
`Landing Using Shipboard
`Relative GPS, PROCEEDINGS OF
`THE ION 57TH ANNUAL MEETING
`AND THE CIGTF 20TH BIENNIAL
`GUIDANCE TEST SYMPOSIUM, at
`841–851
`U.S. Patent No. 6,450,452 B1
`
`Date
`1998
`
`Exhibit
`1003
`
`Feb. 23, 1999 1004
`Jul. 27, 1999
`1005
`Feb. 15, 2000 1006
`2001 1007
`
`Sep. 17, 2002 1008
`
`4
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`
`D.
`
`Asserted Grounds of Unpatentability
`SpaceX challenges the patentability of claims 1–13 based on the
`following grounds:
`
`Ground
`
`Basis
`
`Challenged Claims
`
`§ 102
`
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`Ishijima
`
`Ishijima and Mueller
`
`Ishijima and Kindem
`
`Ishijima, Spencer, and Waters
`
`Ishijima and Lane
`
`Ishijima, Lane, and Mueller
`
`Ishijima, Lane, and Waters
`
`1–3
`
`4, 5
`
`6
`
`7
`
`8, 9, 12, 13
`
`10
`
`11
`
`III. ANALYSIS
`
`A.
`
`Claim Construction
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in the context of the patent in which
`they appear. 37 C.F.R. § 42.100(b). SpaceX proposes a construction for
`five claim terms, namely, “space launch vehicle,” “nose-first orientation,”
`“tail-first orientation,” “positional information,” and “deploying . . . flared
`control surfaces.” Pet. 13–18. Based on our review of the record, however,
`
`5
`
`
`
`any claim
`
`
`
`term is neecessary fo
`
`r
`
`
`
`IPR22014-013776
`
`
`Patennt 8,678,3221 B2
`
`
`
`
`
`we ddetermine tthat no exppress consttruction of
`
`purpposes of thiis preliminnary proceeeding.2
`
`
`
`B.
`
`Assertedd Grounds
`
`
`CClaims 1–3——Anticipation by Ishhijima
`
`1.
`
`
`
`
`SpaceX argues thaat Ishijima
`
`
`
`anticipatess the limitaations of cllaims 1–3.
`
`
`
`
`
`
`
`19–26. Acccording too SpaceX, Ishijima ddiscloses ann RLV thatt utilizes a
`
`Pet.
`
`
`
`
`
`
`
`aimed in bed and claone describical to the oence identivery sequeflighht and reco
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`headd comparison of Figuure 1 of Ishhijima (beloow left) wiith Figure
`1 of the
`
`
`’321 patent (beelow right)). Id. at 199.
`
`
`
`the ’321 patentt. Id. at 199–20. SpacceX illustraates this iddentity withh a head-too-
`
`
`
`
`
`
`
`FFig. 1 of ’3321 Patentt
`
`Each Figgure depictts a flight pprofile of aa reusable
`
`launch vehhicle.
`
`
`
`
`Fig. 1 off Ishijima
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`of a petition foor institutinng a trial annd ends wiith a writteen decisionn as to
`
`
`
`
`whetther a trial will be insstituted.” 337 C.F.R.
`§ 42.2.
`6
`
`2 A ““Preliminaary Proceedding,” accoording to oour rules, “bbegins witth the filingg
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`
`Claims 1–3 are fairly straight-forward, reciting the steps of
`“launching” a space launch vehicle from a coastal launch site, “reorienting”
`the vehicle from a nose-first to a tail-first orientation after launch, and
`“vertically landing” the vehicle on a sea-going platform “while providing
`thrust” from the vehicle’s engines. Like the ’321 patent, Figure 1 of Ishijima
`depicts a flight sequence for a “Reusable Launch Vehicle (RLV)” that
`includes a launch and ascent phase, a reentry phase, a glide and rotation
`phase, and a powered-landing phase. Ex. 1003 at 15. Ishijima further
`discloses that, during re-entry, the RLV performs a “Rotation Maneuver,” in
`which the RLV “changes its attitude from nose-first to tail-first.” Id. For
`landing on “a tanker on the sea,” Ishijima’s RLV “performs vertical
`powered-descent” and “lands softly throttling the thrust.” Id. at 14–15.
`On the current record, there is clearly identity between Ishijima and
`claims 1–3 of the ’321 patent. After reviewing SpaceX’s evidence and
`analysis, we determine that SpaceX has demonstrated a reasonable
`likelihood that claims 1–3 are anticipated by Ishijima.
`2.
`Claims 4, 5, 6—Obviousness Over Ishijima+Mueller+Kindem
`Claims 4 and 5 depend directly from claim 1 and add the steps of
`“refurbishing” and “reusing” the space launch vehicle. Claim 6 also
`depends from claim 1 and adds the step of “transferring” the recovered space
`vehicle from the floating platform to a “transit vessel.” Noting that Ishijima
`describes the RLV as being “transferred to the launch site on a large tanker
`or pontoons,” SpaceX nonetheless acknowledges that Ishijima may not
`necessarily disclose all the details of transferring and refurbishing the RLV.
`
`7
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`Pet. 38, 41. But SpaceX cites Mueller as teaching a well-known process for
`“refurbishing and relaunching” a space vehicle after recovery from an earlier
`launch. Id. at 38 (citing Ex. 1005, 2:56–63). SpaceX also cites Kindem as
`teaching a technique for transferring a recovered rocket between a transit
`ship and a floating platform. Pet. 43–44 (citing 1006, 1:60–64, 2:55–60).
`SpaceX argues that adapting the recovery and refurbishment
`techniques of Mueller to the launch and recovery method of Ishijima would
`have been obvious because both methods have the common objective of
`reducing operational costs for space transportation by avoiding new booster
`rockets and reducing waste material. Pet. 39–40 (citing Ex. 1003 at 192, Ex.
`1005, 1:31–35, 2:23–26, Ex. 1016 ¶¶ 25, 190, 191). SpaceX also argues that
`adding the transfer and transport technique of Kindem to the recovery
`method of Ishijima would have been obvious because the combination
`would increase the speed of transport to land and permit the floating
`platform to remain in position. Id. at 44–45 (citing Ex. 1016 ¶¶ 215–217).
`We find SpaceX’s evidence and analysis persuasive, and, thus, determine
`that SpaceX has demonstrated a reasonable likelihood that claims 4 and 5
`are unpatentable over Ishijima and Mueller and that claim 6 is unpatentable
`over Ishijima and Kindem.
`3.
`Claim 7—Obviousness Over Ishijima+Spencer+Waters
`Claim 7 further defines the space launch vehicle as having a booster
`stage and a payload stage. In doing so, claim 7 adds the steps of (1) turning
`off the engines on the booster stage, (2) separating the booster stage from the
`payload stage “at predetermined altitude,” (3) utilizing “positional
`
`8
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`information” to control the trajectory of the booster stage toward the landing
`platform, and (4) reigniting the engines for vertically landing the booster
`stage on the platform. Arguing that Ishijima discloses essentially all of these
`steps, SpaceX nonetheless cites Spencer for teaching separation of an RLV
`from a payload stage “at a predetermined level,” and cites Waters for
`teaching the use of “positional information” to facilitate landing on a sea-
`based platform . Pet. 45–52. On the current record, we find SpaceX’s
`evidence persuasive.
`Ishijima plainly depicts a glide phase in which the engines of the RLV
`(or booster stage) are shut down upon separation from the payload and
`trajectory is controlled by “aerodynamic force.” Ex. 1003 at 15, Fig. 1.
`Subsequently, the RLV “re-ignites the main engines” and “performs vertical
`powered-descent” onto the landing platform. Id. To the extent that Ishijima
`does not identify a specific separation point for the two stages, Spencer
`teaches expressly that RLV separation occurs at a “predetermined time,
`elevation, [and] velocity” after liftoff. Ex. 1008, 2:34–38, 7:14–16. SpaceX
`argues that triggering the two-stage separation of Ishijima according to the
`specific altitude criterion of Spencer would have been obvious because both
`Ishijima and Spencer are concerned with enabling the payload stage to
`proceed to orbit while permitting the booster stage to be recovered and
`reused. Pet. 49–50 (citing Ex. 1016 ¶ 241). We find this line of reasoning
`persuasive.
`With respect to using positional information for controlling the
`trajectory of the RLV toward the landing target, Ishijima explains that the
`
`9
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`descent trajectory of the RLV is tightly controlled: “After the glide, the
`vehicle re-ignites the main engines, and . . . the vehicle performs vertical
`powered-descent while compensating the errors caused in the reentry and
`glide phases.” Ex. 1003 at 15 (emphasis added). Ishijima further recognizes
`that “[i]n order to land in a limited area such as a tanker on the sea, the re-
`entry and terminal guidance should be accurate and robust.” Id. at 14. To
`the extent that Ishijima does not describe the precise technique for
`controlling the booster stage’s descent trajectory, Waters teaches a “sea-
`based variant” of a precision navigation system that transmits reference data
`to unmanned aircraft for landing on an ocean platform. Ex. 1007 at 12–13.
`SpaceX argues that incorporating the sea-based navigation techniques of
`Waters into the terminal guidance procedures for the RLV in Ishijima would
`have been obvious because both Ishijima and Waters require precision
`landing of an unmanned vehicle on a sea-based platform. Pet. 50–51 (citing
`Ex. 1016 ¶ 250).
`We find SpaceX’s evidence and analysis persuasive, and, thus,
`determine that SpaceX has demonstrated a reasonable likelihood that claims
`4 and 5 are unpatentable over Ishijima and Mueller and that claim 6 is
`unpatentable over Ishijima and Kindem After considering SpaceX’s
`evidence and analysis, we determine SpaceX has made a prima facie
`showing that the combination of Ishijima, Spencer, and Waters is rational
`and evinces known elements using known methods to achieve predictable
`results that would have been obvious to skilled artisans. As such, SpaceX
`has demonstrated a reasonable likelihood that claim 7 is unpatentable.
`
`10
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`
`Claims 8–13—Obviousness Over Ishijima+Lane+Waters+
`4.
`Mueller
`
`
`Claims 8–13 restate many of the same limitations of claims 1–7, but
`add the steps of “deploying an aerodynamic control surface” and “operating
`one or more propulsive thrusters” to facilitate reorientation of the booster
`stage for a vertical, tail-first landing. SpaceX argues that claims 8, 9, 12,
`and 13 would have been obvious over Ishijima and Lane, and that claims 10
`and 11, which depend from claim 8, would have been obvious when Ishijima
`and Lane are viewed with Mueller and Waters. Pet. 26–36, 52–55.
`As discussed above, Ishijima discloses “controlling aerodynamic
`force” and “throttling the thrust” to reorient and decelerate the RLV (or
`booster stage) for a “vertical powered-descent.” Ex. 1003 at 15. Lane
`teaches a vertically-landing RLV that utilizes aerodynamic flaps for rotating
`and stabilizing the vehicle during re-entry and pre-landing maneuvers. Ex.
`1004, Fig. 4, 1:6–10. The RLV in Lane, like the one in Ishijima, initiates a
`rotation and landing sequence that includes rotating the vehicle from a
`“nose-forward orientation” to a “rearward or base-first orientation.” Id. at
`3:35–38. During reorientation, the engines are “in an off state” and the flaps
`are “partially or fully extended” while the RLV travels along a parabolic
`flight path. Id. at 3:48-58. A flight control computer then controls the
`RLV’s engines to regulate descent and touchdown. Id. at 3:64–4:54.
`SpaceX argues that incorporating the aerodynamic flap technique of
`Lane into the reorientation and landing sequence of Ishijima would have
`been obvious because the RLV of both Ishijima and Lane utilize
`
`11
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`aerodynamic forces and engine reignition to control descent and landing of
`the vehicle. Pet. 32, 34–35. After considering SpaceX’s evidence and
`analysis, we determine that SpaceX has demonstrated a reasonable
`likelihood that claims 8, 9, 12, and 13 are unpatentable over Ishijima and
`Lane.
`With respect to claims 10 and 11, Mueller teaches expressly the use of
`propulsive thrusters for rotating the booster stage of a rocket from a nose-
`first to a tail-first orientation. Ex. 1005, 17:31–53. And, as discussed above
`with respect to claim 7, Waters teaches the use of positional information for
`a sea-based landing. Ex. 1007 at 12–13. SpaceX argues that incorporating
`the propulsive thrusters of Mueller and the sea-based guidance control of
`Waters into the terminal guidance procedures for the booster stage in
`Ishijima would have been obvious “for reorientation” and “to obtain precise
`landing location.” Pet. 54 (citing Ex. 1016 ¶¶ 175–175, 249–252, 269), 55
`(citing Ex. 1016 ¶¶ 279–281). After considering SpaceX’s evidence and
`analysis, we determine that SpaceX has demonstrated a reasonable
`likelihood that claim 10 is unpatentable over Ishijima, Lane, and Mueller,
`and that claim 11 is unpatentable over Ishijima, Lane, and Waters.
`IV. CONCLUSION
`On the current record, SpaceX has demonstrated a reasonable
`
`likelihood of prevailing on the asserted ground of anticipation of claims 1–3
`by Ishijima under 35 U.S.C. § 102 and the asserted grounds of obviousness
`of claims 4–13 over Ishijima and variant combinations of Lane, Mueller,
`Waters, Spencer, and Kindem under 35 U.S.C. § 103. As such, we authorize
`
`12
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`institution of an inter partes review of claims 1–13 of the ’321 patent. Our
`decision to institute acts as a preliminary measure of SpaceX’s evidence as
`having enough merit to take the case to trial. Blue Origin may now come
`forward with argument and evidence in response to SpaceX’s prima facie
`proof of unpatentability.3
`
`
`
`V. ORDER
`For the foregoing reasons, it is
`ORDERED that, pursuant to 35 U.S.C. § 314(a), inter partes review
`of claims 1–13 of the ’321 patent is instituted on the grounds of anticipation
`under 35 U.S.C. § 102 and obviousness under 35 U.S.C. § 103; and
`
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, inter partes review of the ’321 patent shall commence on
`the entry date of this Order, and notice is hereby given of the institution of a
`trial.
`
`
`
`
`
`3 Senator Jon Kyl remarked that the “reasonable likelihood” threshold
`imposed by 35 U.S.C. § 314(a) “is currently used in evaluating whether a
`party is entitled to a preliminary injunction, and effectively requires the
`petitioner to present a prima facie case justifying a rejection of the claims in
`the patent.” 157 CONG. REC. S1375 (daily ed. Mar. 8, 2011).
`13
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`FOR PETITIONER:
`
`Heidi L. Keefe
`C. Scott Talbot
`COOLEY LLP
`hkeefe@cooley.com
`stalbot@cooley.com
`zpatdcdocketing@cooley.com
`
`FOR PATENT OWNER:
`
`John M. Wechkin
`Ryan J. McBrayer
`PERKINS COIE LLP
`JWechkin@perkinscoie.com
`RMcBrayer@perkinscoie.com
`
`
`14
`
`
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