throbber
UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`Space Exploration Technologies Corp.
`Petitioner
`
`v.
`
`Blue Origin LLC
`Patent Owner
`
`U.S. Patent No. 8,678,321
`Filing Date: June 14, 2010
`Issue Date: March 25, 2014
`
`Title: SEA LANDING OF SPACE LAUNCH VEHICLES
`AND ASSOCIATED SYSTEMS AND METHODS
`
`
`
`Inter Partes Review No. ______
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`

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`Table of Contents
`
`
`
`
`
`I. 
`
`MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(A)(1) ........................................ 1 
`A. 
`Real Party-ln-lnterest under 37 C.F.R. § 42.8(b)(1) .............................................. 1 
`B. 
`Related Matters under 37 C.F.R. § 42.8(b)(2) ....................................................... 1 
`C. 
`Lead and Back-Up Counsel under 37 C.F.R. § 42.8(b)(3) .................................... 1 
`D. 
`Service Information ............................................................................................... 2 
`E. 
`Power of Attorney .................................................................................................. 2 
`PAYMENT OF FEES - 37 C.F.R. § 42.103 ................................................................... 2 
`II. 
`III.  REQUIREMENTS FOR INTER PARTES REVIEW UNDER 37 C.F.R. §
`42.104................................................................................................................................. 2 
`A. 
`Grounds for Standing under 37 C.F.R. § 42.104(a) ............................................... 2 
`B. 
`Identification of Challenge under 37 C.F.R. § 42.104(b) and Statement of
`Precise Relief Requested ........................................................................................ 3 
`Threshold for Inter Partes Review 37 C.F.R. § 42.108(c) .................................... 5 
`C. 
`TECHNOLOGY BACKGROUND RELEVANT TO THE ‘321 PATENT ............... 5 
`A. 
`“Rocket Science” ................................................................................................... 5 
`B. 
`Launch Vehicles ..................................................................................................... 6 
`C. 
`Multistage Rockets ................................................................................................. 7 
`D. 
`Reusable Spacecraft and “Reusable Launch Vehicles” (RLVs) ............................ 8 
`E. 
`Sea Landing of Reusable Launch Vehicles ........................................................... 9 
`SUMMARY OF THE CLAIMED SUBJECT MATTER .......................................... 11 
`A. 
`The Specification of the ‘321 Patent .................................................................... 11 
`B. 
`Summary of the Relevant Prosecution History .................................................... 13 
`C. 
`The Claims of the ‘321 Patent ............................................................................. 14 
`VI.  CLAIM CONSTRUCTION UNDER 37 C.F.R. § 42.104(B)(3) ................................. 15 
`A. 
`“Space Launch Vehicle” ...................................................................................... 16 
`B. 
`“Nose-First Orientation” and “Tail-First Orientation” ........................................ 17 
`C. 
`“Positional Information” ...................................................................................... 18 
`D. 
`Deploying [Flared] Control Surface[s] ................................................................ 18 
`VII.  CLAIMS 1-13 OF THE ‘321 PATENT ARE UNPATENTABLE ............................ 19 
`
`IV. 
`
`V. 
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`Table of Contents
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`
`
`A. 
`
`B. 
`
`Ground 1: Claims 1-3 Are Anticipated by Ishijima ............................................. 19 
`1. 
`Ishijima Anticipates Claim 1 ................................................................... 21 
`2. 
`Ishijima Anticipates Claim 2 ................................................................... 25 
`3. 
`Ishijima Anticipates Claim 3 ................................................................... 25 
`Ground 2: Claims 8, 9, 12, and 13 Are Obvious over Ishijima in view of
`Lane...................................................................................................................... 26 
`1. 
`Ishijima and Lane Render Claim 8 Obvious ............................................ 27 
`2. 
`Ishijima and Lane Render Claim 9 Obvious ............................................ 33 
`3. 
`Ishijima and Lane Render Claim 12 Obvious .......................................... 35 
`4. 
`Ishijima and Lane Render Claim 13 Obvious .......................................... 35 
`Ground 3: Claims 4 and 5 Are Obvious over Ishijima in view of Mueller
`‘653 ...................................................................................................................... 37 
`1. 
`Claim 4 is Obvious over Ishijima in view of Mueller ‘653 ..................... 38 
`2. 
`Claim 5 is Obvious over Ishijima in view of Mueller ‘653 ..................... 40 
`Ground 4: Claim 6 is Obvious over Ishijima in view of Kindem ........................ 43 
`Ground 5: Claim 7 is Obvious over Ishijima in view of Spencer, further in
`view of Waters ..................................................................................................... 45 
`Ground 6: Claim 11 is Obvious over Ishijima in view of Lane, and further
`in view of Waters ................................................................................................. 52 
`Ground 7: Claim 10 is Obvious over Ishijima in view of Lane, and further
`in view of Mueller ‘653 ....................................................................................... 54 
`VIII.  CONCLUSION .............................................................................................................. 55 
`
`C. 
`
`D. 
`E. 
`
`F. 
`
`G. 
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`
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`EXHIBITS
`
`Ex. No.
`
`Title of Document
`
`1001 U.S. Patent No. 8,678,321 to Jeffrey P. Bezos et al.
`
`1002
`
`Prosecution History of U.S. Patent No. 8,678,321 to Jeffrey P. Bezos
`et al.
`
`1003 Yoshiyuki Ishijima et al., Re-entry and Terminal Guidance for
`Vertical-Landing TSTO (Two-Stage to Orbit), A Collection of
`Technical Papers Part 1, AIAA Guidance, Navigation and Control
`Conference and Exhibit, A98-37001 (“Ishijima”)
`
`1004 U.S. Patent No. 5,873,549 to Jeffery G. Lane et al. (“Lane”)
`
`1005 U.S. Patent No. 5,927,653 to George E. Mueller et al. (“Mueller ‘653”)
`
`1006 U.S. Patent No. 6,024,006 to Bjørn Kindem et al. (“Kindem”)
`
`1007
`
`Jack Waters, et al., Test Results of an F/A-18 Automatic Carrier
`Landing Using Shipboard Relative GPS, Proceeding of the ION 57th
`Annual Meeting and the CIGTF 20th Biennial Guidance Test
`Symposium (2001) (“Waters”)
`
`1008 U.S. Patent No. 6,450,452 to Robert B. Spencer et al. (“Spencer”)
`
`1009
`
`LUCY ROGERS, IT’S ONLY ROCKET SCIENCE: AN INTRODUCTION IN
`PLAIN ENGLISH (2008).
`
`1010 U.S. Patent No. 8,047,472 to Vance D. Brand et al. (“Brand”)
`
`1011
`
`STEVEN J. ISAKOWITZ, JOSEPH P. HOPKINS & JOSHUA B. HOPKINS,
`INTERNATIONAL REFERENCE GUIDE TO SPACE LAUNCH SYSTEMS (4th
`ed. 2004).
`
`1012 MARSHALL H. KAPLAN, SPACE SHUTTLE: AMERICA'S WINGS TO THE
`FUTURE (2nd ed. 1978).
`
`1013 NASA, http://www.nasa.gov/mission_pages/shuttle (last visited Aug.
`13, 2014).
`
`
`
`
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`-iii-
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`
`
`Ex. No.
`
`1014
`
`Title of Document
`
`Ed Memi, A Step To The Moon: DC-X Experimental Lander Set Up
`Boeing For Future NASA Work. BOEING FRONTIERS, 8-9.
`http://www.boeing.com/news/frontiers/archive/2008/aug/i_history.pdf
`(last visited Aug. 13, 2014).
`
`1015 William Gaubatz, et al., DC-X Results and the Next Step, American
`Institute of Aeronautics and Astronautics, AIAA-94-4674 (1994).
`
`1016 Declaration of Marshal H. Kaplan, Ph.D. dated August 25, 2014
`
`
`
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`
`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US 
`
`
`Space Exploration Technologies Corp. (“Petitioner” or “SpaceX”) hereby
`
`
`
`petitions for inter partes review under 35 U.S.C. §§ 311-319 and 37 C.F.R. § 42 of
`
`claims 1-13 of U.S. Patent No. 8,678,321 [Ex. 1001] (“the ‘321 patent”).
`
`I. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8(A)(1)
`A. Real Party-ln-lnterest under 37 C.F.R. § 42.8(b)(1)
`Petitioner SpaceX is the real party-in-interest for the instant petition.
`
`B. Related Matters under 37 C.F.R. § 42.8(b)(2)
`Petitioner notes that it is concurrently filing a separate petition for inter
`
`partes review of claims 14-15 of U.S. Patent No. 8,678,321.
`
`C. Lead and Back-Up Counsel under 37 C.F.R. § 42.8(b)(3)
`Petitioner provides the following designation of counsel.
`
`LEAD COUNSEL
`Heidi L. Keefe (Reg. No. 40,673)
`Cooley LLP, ATTN: Patent Group
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, DC 20004
`Tel: (650) 843-5001
`Fax: (650) 849-7400
`hkeefe@cooley.com
`zpatdcdocketing@cooley.com
`
`
`BACK-UP COUNSEL
`C Scott Talbot (Reg. No. 34,262)
`Cooley LLP, ATTN: Patent Group
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, DC 20004
`Tel: (703) 456-8072
`Fax: (202) 842-7899
`stalbot@cooley.com
`zpatdcdocketing@cooley.com
`
`
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`1
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`

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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US 
`
`
`
`
`Service Information
`
`D.
`As identified in the attached Certificate of Service, a copy of the present
`
`petition, in its entirety, including all Exhibits and a power of attorney, is being
`
`served by EXPRESS MAIL® to the address of the attorney or agent of record for
`
`the owner of record of the ‘321 patent, Blue Origin LLC. SpaceX may be served
`
`at the lead counsel address provided in Section I.C. SpaceX consents to electronic
`
`service by e-mail at the e-mail addresses provided above, which include both
`
`individual e-mail addresses and a general docketing e-mail address.
`
`Power of Attorney
`
`E.
`Filed herewith in accordance with 37 C.F.R. § 42.10(b).
`
`II.
`
`PAYMENT OF FEES - 37 C.F.R. § 42.103
`
`This petition requests review of 13 claims of the ‘321 patent and is
`
`accompanied by a payment of $23,000 for 13 claims. See 37 C.F.R. § 42.15. This
`
`Petition therefore meets the fee requirements under 35 U.S.C. § 312(a)(1).
`
`III. REQUIREMENTS FOR INTER PARTES REVIEW UNDER 37 C.F.R. § 42.104
`A. Grounds for Standing under 37 C.F.R. § 42.104(a)
`Petitioner certifies that the ‘321 patent is eligible for inter partes review and
`
`that Petitioner is not barred or otherwise estopped from requesting inter partes
`
`review challenging the identified claims on the grounds identified herein.
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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US 
`
`
`
`
`B.
`
`Identification of Challenge under 37 C.F.R. § 42.104(b) and
`Statement of Precise Relief Requested
`Petitioner respectfully requests that the Board initiate inter partes review of
`
`claims 1-13 of the ‘321 patent, and find them unpatentable based on the grounds
`
`set forth herein. The prior art references upon which the invalidity challenge in
`
`this Petition is based are listed below:
`
`Prior Art Document
`Ex. No.
`1003 Yoshiyuki Ishijima et al., Re-entry and Terminal Guidance for Vertical-
`Landing TSTO (Two-Stage to Orbit), A Collection of Technical Papers
`Part 1, AIAA Guidance, Navigation and Control Conference and
`Exhibit, A98-37001 (“Ishijima”)
`1004 U.S. Patent No. 5,873,549 to Jeffery G. Lane et al. (“Lane”)
`1005 U.S. Patent No. 5,927,653 to George E. Mueller et al. (“Mueller ‘653”)
`1006 U.S. Patent No. 6,024,006 to Bjørn Kindem et al. (“Kindem”)
`Jack Waters, et al., Test Results of an F/A-18 Automatic Carrier
`1007
`Landing Using Shipboard Relative GPS, Proceeding of the ION 57th
`Annual Meeting and the CIGTF 20th Biennial Guidance Test
`Symposium (2001) (“Waters”)
`1008 U.S. Patent No. 6,450,452 to Robert B. Spencer et al. (“Spencer”)
`
`This Petition cites additional prior art materials for purposes of providing a
`
`technology background and describing the state of the art at the time of the alleged
`
`invention. These materials are also cited and discussed in the accompanying
`
`Declaration of Marshall H. Kaplan dated August 25, 2014 [Ex. 1016] (“Kaplan
`
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`Petition for Inter Partes Review of US Patent No. 8,678,321
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`Decl.”), an expert with more than four decades of experience in spacecraft and
`
`
`
`launch vehicles. The specific grounds for IPR are identified in the following table:
`
`Ground
`No.
`1
`2
`3
`
`4
`5
`
`6
`
`7
`
`Proposed Ground for
`Claim(s)
`Inter Partes Review
`Affected
`Anticipated by Ishijima under 35 U.S.C. § 102(b)
`1-3
`8, 9, 12, 13 Obvious over Ishijima in view of Lane under § 103(a)
`4, 5
`Obvious over Ishijima in view of Mueller ‘653 under
`§ 103(a)
`Obvious over Ishijima in view of Kindem under § 103(a)
`Obvious over Ishijima in view of Spencer, further in view
`of Waters under § 103(a)
`Obvious over Ishijima in view of Lane, further in view of
`Waters under § 103(a)
`Obvious over Ishijima in view of Lane, further in view of
`Mueller ‘653 under § 103(a)
`
`6
`7
`
`11
`
`10
`
`As reflected in the chart above, this Petition relies on the base reference of
`
`Ishijima for anticipation of claims 1-3, and adds additional references as
`
`appropriate for limitations added by other claims challenged in this Petition. Each
`
`of the references relied upon above qualifies as prior art to the ‘321 patent under at
`
`least 35 U.S.C. § 102(b) (pre-AIA). A specific explanation of each of the grounds
`
`listed above is set forth in Part VII below.
`
`
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`4
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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/00US 
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`
`
`
`C. Threshold for Inter Partes Review 37 C.F.R. § 42.108(c)
`The Board should institute inter partes review of claims 1-13 because this
`
`Petition establishes a reasonable likelihood of prevailing with respect to each
`
`challenged claim. See 35 U.S.C. § 314(a). Each limitation of each claim
`
`challenged herein is disclosed and/or suggested by the prior art, as explained
`
`below.
`
`IV. TECHNOLOGY BACKGROUND RELEVANT TO THE ‘321 PATENT
`The ‘321 patent, entitled “Sea Landing of Space Launch Vehicles and
`
`Associated Systems and Methods,” generally relates to a system for landing and
`
`recovering portions of a space launch vehicle on a platform at sea or in a body of
`
`water. (‘321 patent, Abstract.) The accompanying declaration of Dr. Kaplan
`
`describes the state of the art at the time of the alleged invention. (See Kaplan Decl.
`
`¶¶ 15-44.) This section provides an overview of that description.
`
`“Rocket Science”
`
`A.
`History changed on October 4, 1957 when the Soviet Union launched
`
`Sputnik 1, the first man-made satellite ever placed into orbit. This event sparked a
`
`“space race” between the United States and the Soviet Union, which culminated in
`
`the United States landing on the moon in 1969. (Lucy Rogers, It’s ONLY Rocket
`
`Science: An Introduction in Plain English (2008) [Ex. 1009], at 1.) The ensuing
`
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`years witnessed an extraordinary number of scientific and
`
`
`
`technological
`
`breakthroughs for launching objects into space and bringing them back.
`
`These breakthroughs captured the public imagination and created a new
`
`vernacular, with terms like “rocket science,” referring to fields generally reserved
`
`for only the most intelligent. (Id.) But by 2009, the earliest possibly priority date
`
`listed on the face of the patent, the basic concepts of “rocket science” were well-
`
`known and widely understood. The “rocket science” claimed in the ‘321 patent
`
`was, at best, “old hat” by 2009. (Kaplan Decl. ¶ 19.)
`
`Launch Vehicles
`
`B.
`To understand the process for launching objects into space, one should be
`
`familiar with the concept of a “launch vehicle,” which is a device used to launch
`
`one or more other objects – known as the “payload” – into space. (Id. ¶ 20.)
`
`Examples of “payloads” include satellites, space probes, telescopes, equipment for
`
`research and experimentation, and manned or unmanned spacecraft (small vehicle,
`
`usually a capsule, that maneuvers in space). The launch vehicle typically includes
`
`one or more rocket engines that propel the launch vehicle and carry the payload
`
`into space. (See Ex. 1009 at 30.) As explained in the Background of the ‘321
`
`patent, “[r]ocket powered launch vehicles have been used for many years to carry
`
`human and non-human payloads into space.” (‘321 patent at 1:49-50.)
`
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`C. Multistage Rockets
`Most launch vehicles utilize a rocket assembly with multiple different
`
`“stages,” commonly referred to as a “multistage rocket.” The concept has been
`
`used since the 1500s, when Johann Schmidlap, a German fireworks manufacturer,
`
`designed a “step rocket” to propel his fireworks to higher altitudes by strapping a
`
`smaller rocket atop a larger one. The larger rocket ignited first and carried the
`
`fireworks into the air. When the large rocket exhausted its fuel, the smaller rocket
`
`detached and ignited, carrying the fireworks to even higher altitudes using the
`
`smaller rocket’s own fuel. (Ex. 1009 at 27.)
`
`Modern “multi-stage” rockets use precisely the same approach for the same
`
`simple reason as Schmidlap’s “step rocket”: by shedding the mass of the used-up
`
`“booster” stage(s) along the way, the rocket is able to carry heavier payloads
`
`farther. To date, all successful orbital launch vehicles have employed multiple
`
`rocket stages because “[t]he weight of the rocket, including the engines, fuel and
`
`payload, is too large for current propulsion systems to get into orbit in one stage.”
`
`(Id.)
`
` Each rocket stage typically “contains its own propellant, engines,
`
`instrumentation and airframe, so that it can function independently.” (Id.) The
`
`first stage is responsible for lifting the payload and all other stages off the surface
`
`of the Earth. (Id. at 27-28.) “Usually, the first stage burns for only a couple of
`
`minutes. After it has used all of its propellant, the empty propellant tank, engine,
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`instrumentation and airframe are just dead weight and are jettisoned and usually
`
`
`
`return to Earth.” (Id. at 28.) The next stage then ignites and carries the payload
`
`and any remaining stage(s) even higher. As of 2008, rockets with up to five stages
`
`had been developed and launched. (Id.)
`
`D. Reusable Spacecraft and “Reusable Launch Vehicles” (RLVs)
`Traveling to space has always been an expensive proposition, and there has
`
`long been an interest in developing launch vehicles that can be partially or
`
`completely reused. (See Kaplan Decl. ¶ 23.) By the 1970s, the expense of relying
`
`on expendable launch vehicles to reach space led to the Space Shuttle program.
`
`(Id.) Even with the partially reusable Space Shuttle, the cost to reach space
`
`remained staggeringly expensive. (Kaplan Decl. ¶ 24.)
`
`By the late-1970s, industry recognized that the need for reusability also
`
`extended to booster stages. As explained in U.S. Patent No. 5,927,653 to George
`
`E. Mueller et al. (“Mueller ‘653”) [Ex. 1005], filed in 1996, “[o]ne of the most
`
`significant problems facing industry with respect to satellite deployment is the
`
`extremely high cost to transport the satellite to a desired orbit.” (Ex. 1005 at 1:29-
`
`31.) Mueller ‘653 reported that launching an unmanned satellite into orbit in 1996
`
`could cost from $40 million to $200 million, depending on the type of rocket
`
`required. (Id. at 1:31-35.) Mueller and others recognized that substantial cost
`
`savings could be realized by reusing booster stages. (Kaplan Decl. ¶ 25.) Mueller
`
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`‘653 therefore disclosed “a reliable, reusable and cost-effective system for
`
`
`
`deployment of payloads to low Earth orbit.” (Ex. 1005 at 2:23-26 (emphasis
`
`added).)
`
`These concerns were echoed in U.S. Patent No. 5,873,549 to Jeffrey G. Lane
`
`et al. (“Lane”) [Ex. 1004], also filed in 1996. Lane describes a reusable single
`
`stage to orbit (“SSTO”) launch vehicle. SSTO vehicles “are designed to perform
`
`their intended operation and return to earth without jettisoning any portions of the
`
`vehicle.” (Ex. 1004 at 1:12-16.) Lane and Mueller ‘653 confirm that by at least
`
`1996, industry had recognized and responded to the need for reusable launch
`
`vehicles, which provide cost savings over prior techniques that rely on single-use
`
`rockets. (Kaplan Decl. ¶¶ 25-26.)
`
`Sea Landing of Reusable Launch Vehicles
`
`E.
`The industry also recognized a need for reusable launch vehicles that could
`
`land at sea. The advantages of landing a reusable launch vehicle at sea have also
`
`long been obvious and straightforward to persons of ordinary skill in the art.
`
`Landing a launch vehicle or launch vehicle component at sea reduces the risk of
`
`accidental loss of life or property in the event of a vehicle malfunction or crash.
`
`(Kaplan Decl. ¶ 34.) It also simplifies down-range landing of boosters, which are
`
`typically launched from coastal launch sites, by eliminating the need for the
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`boosters to substantially change their trajectory to reach a particular location on
`
`
`
`land, thereby minimizing their expenditure of propellant. (See Kaplan Decl. ¶ 32.)
`
`For example, throughout the prosecution of the ‘321 patent, the claims were
`
`rejected over U.S. Patent No. 8,047,472 to Vance D. Brand et al. (“Brand”) [Ex.
`
`1010], which disclosed a “reusable launch system” in which the lower stage
`
`“descends to touchdown on a barge in the ocean” (id. at 5:41-42).
`
`A similar technique was described in a 1998 publication by Yoshiyuki
`
`Ishijima et al., “Re-entry and Terminal Guidance for Vertical-Landing TSTO
`
`(Two-Stage to Orbit),” AAIA Pub. No. 98-4120 (“Ishijima”) [Ex. 1003]. Ishijima
`
`explains that “the research about Reusable Launch Vehicles (RLV) is becoming
`
`more active, because they have the potential to reduce the cost of space
`
`transportation.” (Ex. 1003 at 192.) Ishijima discloses a TSTO system in which the
`
`first stage “is recovered and transferred
`
`to the launch site on a large tanker or
`
`pontoon,” as shown in Figure 1 of
`
`Ishijima shown at the right. (Id. at 192,
`
`193 (Fig. 1).) Ishijima explains that
`
`“[i]n order to land in a limited area such
`
`as a tanker on the sea, the re-entry and
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`terminal guidance should be accurate and robust.” (Id. at 192.)
`
`
`
`V.
`
`SUMMARY OF THE CLAIMED SUBJECT MATTER
`A. The Specification of the ‘321 Patent
`The reusable launch vehicle techniques described in Section IV above were
`
`known to persons of ordinary skill in the art by at least the late 1990s, but this fact
`
`went largely unnoticed by the patent owner during the original prosecution of the
`
`‘321 patent. The Background portion of the ‘321 patent pays lip service to the
`
`existence of prior art reusable launch vehicles (RLVs), but does not describe them
`
`in any detail. (‘321 patent at 1:60-62.) Nor does the specification identify any
`
`specific drawback of existing RLVs that the alleged invention seeks to address.
`
`(Id.)
`
`The ‘321 patent instead attempts to lay claim over the technique described
`
`by Ishijima in 1998 of landing a reusable space launch vehicle on a “sea-going
`
`platform,” such as a “free-floating, ocean-going barge” or other vessel. (‘321
`
`patent at 5:14-20.) The basic technique disclosed in the specification of the ‘321
`
`patent is shown in Fig. 1 of the patent:
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`‘321 patent, Fig. 1
`Fig. 1, above, shows “a flight profile of a reusable launch vehicle that
`
`performs a vertical powered landing on a sea-going platform in accordance with an
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`embodiment of the disclosure.” (Id. at 3:10-13.) The left side of Fig. 1 shows a
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`launch vehicle (100) situated on a “coastal or other land-based launch site 140.”
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`(‘321 patent at 3:13-15, 3:42-43.) The launch vehicle (100) includes “a first or
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`booster stage” (110) and “a second or upper stage” (130). (Id. at 3:13-15.) The
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`right side of Fig. 1 shows a “sea-going platform” (150) that may be located “a
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`hundred or more miles downrange from the coastal launch site 140.” (Id. at 4:13-
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`15.)
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`The specification explains that the launch vehicle (100) “takes off from a
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`coastal or other land-based launch site 140 and then turns out over an ocean 102.”
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`(Id. at 3:42-44.) After the booster stage (110) shuts off at high altitude, it
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`
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`“separates from the upper stage 130 and continues along a ballistic trajectory.” (Id.
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`at 3:64-66.) The booster stage (110) then reorients itself into a “tail first” position
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`and then moves toward the sea-going platform (150). (Id. at 4:3-6.)
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`In order to land the booster stage (110) on the sea-going platform (150), the
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`booster stage “restarts the booster engines 116 to slow its descent.” (Id. at 4:51-
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`55.) “The booster stage 110 then performs a vertical, powered landing on the
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`platform 150 at low speed.” (Id. at 4:55-57.)
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`The specification does not provide any detailed description of how to land
`
`the booster stage (110) at sea. In fact, the specification admits that details
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`associated with “launching and landing space launch vehicles” are “well-known,”
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`and therefore not set forth in the specification “to avoid unnecessarily obscuring
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`the various embodiments of the disclosure.” (Id. at 2:32-37.)
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`Summary of the Relevant Prosecution History
`
`B.
`Throughout prosecution, the claims were repeatedly rejected over the Brand
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`patent, which, as noted previously, disclosed a reusable launch system in which the
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`lower stage lands on a barge in the ocean. (See Ex. 1010 at 5:41-42.)
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`The patent owner did not dispute that Brand disclosed the use of a reusable
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`launch vehicle that could land on a sea-going platform. It instead argued that
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`Brand discloses an “air-breathing” booster and not a rocket. (Ex. 1002 at 191-94.)
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`The difference between an air-breathing engine and a rocket would have been
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`
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`plainly obvious to one of ordinary skill in the art considering not only that Brand
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`disclosed both types of engines, but also that the ‘321 patent itself describes an
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`embodiment in which jet engines are attached to the booster to perform vertical
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`landing maneuvers.
`
` (‘321 patent at 5:1-13.)
`
` The Examiner, however,
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`subsequently allowed the claims, reasoning that Brand did not teach “vertically
`
`landing the space launch vehicle . . . while providing thrust from at least one or
`
`more rocket engines . . . [because] Brand specifically teaches away from the use of
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`rocket engines in the booster stage.” (Ex. 1002 at 12-13.) The ‘321 patent
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`subsequently issued on March 25, 2014.
`
`C. The Claims of the ‘321 Patent
`The three independent claims addressed in this Petition, claims 1, 8, and 13,
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`purport to recite methods for landing a space launch vehicle tail-first on a floating
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`platform. All claims recite substantially the same steps of launching a space
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`vehicle, reorienting it to a tail-first position after launch, and then landing on a
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`floating platform. Representative claim 1 recites in full:
`
`1.
`
`[a]
`
`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;
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`[b]
`
`[c]
`[d]
`
`
`
`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.
`
`(‘321 patent at 8:59-9:4 (Claim 1) (bracketed notations (e.g., “[a],” “[b],” etc.)
`
`added to facilitate easier identification of the specific claim limitations in this
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`Petition).)
`
`The other independent method claims addressed in this Petition, i.e. claims 8
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`and 13, merely add detail about how the rocket is powered; they add nothing of
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`patentable significance, as shown in Part VII below. All of the other claims
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`addressed in this Petition are dependent claims that add nothing of patentable
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`significance.
`
`VI. CLAIM CONSTRUCTION UNDER 37 C.F.R. § 42.104(B)(3)
`A claim subject to inter partes review must be given its “broadest reasonable
`
`construction in light of the specification of the patent in which it appears.” 37
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`C.F.R. § 42.100(b). As the Federal Circuit has recognized, the “broadest
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`reasonable construction” standard is different from the manner in which the scope
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`of a claim is determined in litigation.1 (See In re Swanson, 540 F.3d 1368, 1377-
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`
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`78 (Fed. Cir. 2008).) Petitioner accordingly requests that the Board adopt the
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`broadest reasonable construction of each challenged claim. For claim terms not
`
`addressed below, Petitioner has applied the plain and ordinary meaning of those
`
`terms.
`
`“Space Launch Vehicle”
`
`A.
`The term “space launch vehicle” is recited in independent claim 1 as the
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`vehicle that is launched and then landed. The specification uses this term to refer
`
`to a device used to carry a payload into space. (‘321 patent at 1:49-50 (“Rocket
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`powered launch vehicles have been used for many years to carry human and non-
`
`human payloads into space.”).) This is consistent with the understood meaning of
`
`“launch vehicle” to persons of ordinary skill in the art. (Kaplan Decl. ¶ 56; see
`
`also Ex. 1009 at 30 (“The launch vehicle is the rocket, including all of the stages,
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`that is used to launch a payload into space.”).) Petitioner accordingly requests that
`
`
`1 Petitioner’s proposed constructions in Section VI are based on the broadest
`
`reasonable construction in light of the specification. See 37 C.F.R. § 42.100(b);
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`M.P.E.P. § 2111. Petitioner does not concede that those constructions would be
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`appropriate in litigation or any other proceeding that applies a different standard
`
`governing claim construction. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989).
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`the Board find that the broadest reasonable construction of “space launch vehicle”
`
`
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`is “a device used to carry a payload into space.”
`
`“Nose-First Orientation” and “Tail-First Orientation”
`
`B.
`The terms “nose-first orientation” and “tail-first orientation” appear in each
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`independent claim to describe the positioning of the “space launch vehicle” or
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`“booster stage” at different phases of operation.
`
`The specification explains that “the booster stage 110 [Fig. 1] can reenter the
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`atmosphere nose-first, and then reorient to a tail-first orientation just prior to
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`landing.” (‘321 patent at 4:6-8.) The specification further explains that a “tail-first
`
`orientation” exists when “the aft end [of the booster stage] is pointing in the
`
`direction of motion.” (Id. at 4:4-5.) The specification acknowledges that this is
`
`not a constant state because the booster may rotate off-axis, requiring efforts to
`
`stabilize the booster in a tail-first orientation. (Id. at 4:32-37.) The specification
`
`also notes that adjustments to the glide path are needed to adjust for movement of
`
`the landing platform in the water, further indicating that the booster may not
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`always proceed precisely in the direction of motion. (See, e.g., id. at 7:1-23.)
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`Accordingly, Petitioner respectfully submits that the broadest reasonable
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`construction of “tail-first orientation” is “a position in which the vehicle tail is
`
`pointed substantially in the direction of motion.” (Kaplan Decl. ¶ 61.) The related
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`term “nose-first ori

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