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) .................................... 4 
`C. 
`TECHNOLOGY BACKGROUND RELEVANT TO THE ‘321 PATENT ............... 4 
`A. 
`“Rocket Science” ................................................................................................... 5 
`B. 
`Launch Vehicles ..................................................................................................... 5 
`C. 
`Multistage Rockets ................................................................................................. 6 
`D. 
`Reusable Spacecraft and “Reusable Launch Vehicles” (RLVs) ............................ 7 
`E. 
`Sea Landing of Reusable Launch Vehicles ........................................................... 9 
`SUMMARY OF THE CLAIMED SUBJECT MATTER .......................................... 10 
`A. 
`The Specification of the ‘321 Patent .................................................................... 10 
`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. 
`Means-Plus-Function Limitations from Claims 14 and 15 .................................. 18 
`1. 
`“Means for Launching” ............................................................................ 18 
`2. 
`“Means for Igniting” ................................................................................ 19 
`3. 
`“Means for Shutting Off”......................................................................... 19 
`
`IV. 
`
`V. 
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`-i-
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`Table of Contents
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`
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`4. 
`5. 
`6. 
`
`“Means for Reorienting” .......................................................................... 20 
`“Means for Reigniting” ............................................................................ 20 
`“Means for Landing,” “Means for Landing in a Tail-First
`Orientation,” and “Means for Landing Vertically”.................................. 21 
`VII.  CLAIMS 14 AND 15 OF THE ‘321 PATENT ARE OBVIOUS OVER
`ISHIJIMA IN VIEW OF LANE FURTHER IN VIEW OF MUELLER ‘693
`(GROUND 1) .................................................................................................................. 22 
`A. 
`Brief Overview of Ishijima .................................................................................. 23 
`B. 
`Brief Overview of Lane ....................................................................................... 25 
`C. 
`Brief Overview of Mueller ‘693 .......................................................................... 25 
`D. 
`Claim 14 ............................................................................................................... 26 
`Claim 14[a]: Ishijima, Lane, and Mueller ‘693 teach a space launch
`1. 
`vehicle with rocket engines. ..................................................................... 26 
`Claim 14[b]: Ishijima teaches a launch site ............................................. 27 
`Claim 14[c]: Ishijima teaches a sea going platform ................................. 27 
`Claim 14[d]: Ishijima in view of Mueller ‘693 teaches a means for
`launching .................................................................................................. 28 
`Claim 14[e]: Ishijima in view of Mueller ‘693 teaches a means for
`igniting ..................................................................................................... 30 
`Claim 14[f]: Ishijima in view of Mueller ‘693 teaches a means for
`engine shutoff ........................................................................................... 31 
`Claim 14[g]: Ishijima in view of Lane teaches a means for
`reorienting ................................................................................................ 32 
`Claim 14[h]: Ishijima in view of Lane further in view of Mueller
`‘693 teaches a means for engine reignition .............................................. 34 
`Claim 14[i]: Ishijima in view of Lane teaches a means for landing ........ 38 
`Claim 14[j]: Ishijima in view of Mueller ‘693 teaches a means for
`relaunching ............................................................................................... 40 
`Claim 15 ............................................................................................................... 40 
`E. 
`VIII.  CONCLUSION .............................................................................................................. 41 
`
`2. 
`3. 
`4. 
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`5. 
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`6. 
`
`7. 
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`8. 
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`9. 
`10. 
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`-ii-
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`
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`EXHIBITS
`
`Ex. No.
`
`Title of Document
`
`1101 U.S. Patent No. 8,678,321 to Jeffrey P. Bezos et al.
`
`1102
`
`Prosecution History of U.S. Patent No. 8,678,321 to Jeffrey P. Bezos
`et al.
`
`1103 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”)
`
`1104 U.S. Patent No. 5,873,549 to Jeffery G. Lane et al. (“Lane”)
`
`1105 U.S. Patent No. 6,158,693 to George E. Mueller et al. (“Mueller ‘693”)
`
`1106 U.S. Patent No. 5,927,653 to George E. Mueller et al. (“Mueller ‘653”)
`
`1107 U.S. Patent No. 6,024,006 to Bjørn Kindem et al. (“Kindem”)
`
`1108
`
`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”)
`
`1109 U.S. Patent No. 6,450,452 to Robert B. Spencer et al. (“Spencer”)
`
`1110
`
`LUCY ROGERS, IT’S ONLY ROCKET SCIENCE: AN INTRODUCTION IN
`PLAIN ENGLISH (2008).
`
`1111 U.S. Patent No. 8,047,472 to Vance D. Brand et al. (“Brand”)
`
`1112
`
`STEVEN J. ISAKOWITZ, JOSEPH P. HOPKINS & JOSHUA B. HOPKINS,
`INTERNATIONAL REFERENCE GUIDE TO SPACE LAUNCH SYSTEMS (4th
`ed. 2004).
`
`1113 MARSHALL H. KAPLAN, SPACE SHUTTLE: AMERICA'S WINGS TO THE
`FUTURE (2nd ed. 1978).
`
`
`
`
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`-iii-
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`
`
`Ex. No.
`
`Title of Document
`
`1114 NASA, http://www.nasa.gov/mission_pages/shuttle (last visited Aug.
`13, 2014).
`
`1115
`
`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).
`
`1116 William Gaubatz, et al., DC-X Results and the Next Step, American
`Institute of Aeronautics and Astronautics, AIAA-94-4674 (1994).
`
`1117 Declaration of Marshal H. Kaplan, Ph.D. dated August 25, 2014
`
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`-iv-
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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/01US
`
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`

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`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 14-15 of U.S. Patent No. 8,678,321 [Ex. 1101] (“‘321”).
`
`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 1-13 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-003/01US
`
`
`

`
`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 2 claims of the ‘321 patent and is
`
`accompanied by a payment of $23,000 for 2 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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`2
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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/01US
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`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 14-15 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.
`1103 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”)
`1104 U.S. Patent No. 5,873,549 to Jeffery G. Lane et al. (“Lane”)
`1105 U.S. Patent No. 6,158,693 to George E. Mueller et al. (“Mueller ‘693”)
`
`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. 1117] (“Kaplan
`
`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:
`
`
`
`3
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`

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`Petition for Inter Partes Review of US Patent No. 8,678,321
`Docket No. SPAC-003/01US
`
`
`
`Claim(s)
`Affected
`14, 15
`
`Proposed Ground for
`Inter Partes Review
`Obvious over Ishijima in view of Lane further in view of
`Mueller ‘693 under § 103(a)
`

`
`Ground
`No.
`1
`
`As reflected in the chart above, this Petition relies on the combination of
`
`Ishijima, Lane, and Mueller ‘693 for demonstrating the obviousness of claims 14
`
`and 15. 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 the
`
`ground listed above is set forth in Part VII below.
`
`C. Threshold for Inter Partes Review 37 C.F.R. § 42.108(c)
`The Board should institute inter partes review of claims 14-15 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
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`Petition for Inter Partes Review of US Patent No. 8,678,321
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`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 former Soviet Union launched
`
`Sputnik 1, the first man-made satellite ever launched into orbit. This event sparked
`
`a “space race” between the United States and the former 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. 1110], at 1.)
`
`The ensuing 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
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`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. 1110 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.)
`
`C. Multistage Rockets
`Most launch vehicles utilize a rocket assembly with multiple different
`
`“stages,” commonly referred to as a “multistage rocket.” The concept behind
`
`multistage rockets has been known 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. 1110 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
`
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`“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,
`
`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 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.) The reusable Space Shuttle orbiter landed horizontally like an airplane after
`
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`space missions. (Ex. 1110 at 62-63.) 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. 1106], 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. 1106 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
`
`‘653 therefore disclosed “a reliable, reusable and cost-effective system for
`
`deployment of payloads to low Earth orbit.” (Ex. 1106 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. 1104], also filed in 1996. Lane describes 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
`
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`vehicle.” (Ex. 1104 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
`
`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.
`
`1111], 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).
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`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. 1103]. 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. 1103 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
`
`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
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`Petition for Inter Partes Review of US Patent No. 8,678,321
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`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:
`
`‘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
`
`launch vehicle (100) situated on a “coastal or other land-based launch site 140.”
`
`(‘321 patent at 3:13-15, 3:42-43.) The launch vehicle (100) includes “a first or
`
`booster stage” (110) and “a second or upper stage” (130). (Id. at 3:13-15.) The
`
`right side of Fig. 1 shows a “sea-going platform” (150) that may be located “a
`
`hundred or more miles downrange from the coastal launch site 140.” (Id. at 4:13-
`
`15.)
`
`The specification explains that the launch vehicle (100) “takes off from a
`
`coastal or other land-based launch site 140 and then turns out over an ocean 102.”
`
`(Id. at 3:42-44.) After the booster stage (110) shuts off at high altitude, it
`
`“separates from the upper stage 130 and continues along a ballistic trajectory.” (Id.
`
`at 3:64-66.) The booster stage (110) then reorients itself into a “tail first” position
`
`and then moves toward the sea-going platform (150). (Id. at 4:3-6.)
`
`In order to land the booster stage (110) on the sea-going platform (150), the
`
`booster stage “restarts the booster engines 116 to slow its descent.” (Id. at 4:51-
`
`55.) “The booster stage 110 then performs a vertical, powered landing on the
`
`platform 150 at low speed.” (Id. at 4:55-57.)
`
`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,”
`
`and therefore not set forth in the specification “to avoid unnecessarily obscuring
`
`the various embodiments of the disclosure.” (Id. at 2:32-37.)
`
`Summary of the Relevant Prosecution History
`
`B.
`Throughout prosecution, the claims were repeatedly rejected over the Brand
`
`patent which, as noted previously, disclosed a reusable launch system in which the
`
`lower stage lands on a barge in the ocean. (See Ex. 1111 at 5:41-42.)
`
`The patent owner did not dispute that Brand disclosed the use of a reusable
`
`launch vehicle that could land on a sea-going platform. It instead argued that
`
`Brand discloses an “air-breathing” booster and not a rocket. (Ex. 1102 at 191-94.)
`
`The difference between an air-breathing engine and a rocket would have been
`
`plainly obvious to one of ordinary skill in the art considering not only that Brand
`
`disclosed both types of engines, but also that the ‘321 patent itself describes an
`
`embodiment in which jet engines are attached to the booster to perform vertical
`
`landing maneuvers.
`
` (‘321 patent at 5:1-13.)
`
` The Examiner, however,
`
`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. 1102 at 12-13.) The ‘321 patent
`
`subsequently issued on March 25, 2014.
`
`C. The Claims of the ‘321 Patent
`The sole independent claim addressed in this Petition, claim 14, purports to
`
`recite a system for providing access to space, including a space launch vehicle with
`
`rocket engines that performs various operations, including launch, engine shut-off,
`
`reorientation, engine reignition, landing, and relaunching. Most of the elements in
`
`claim 14 are written in “means-plus-function” claim format. Claim 14 recites in
`
`full:
`
`14[a] A system for providing access to space, the system comprising: a
`space launch vehicle, wherein the space launch vehicle includes one
`or more rocket engines;
`14[b] a launch site;
`14[c] a sea going platform;
`14[d] means for launching the launch vehicle from the launch site a first
`time;
`14[e] wherein the means for launching include means for igniting the one
`or more rocket engines and launching the vehicle in a nose-first
`orientation;
`14[f] means for shutting off the one or more rocket engines;
`14[g] means for reorienting the launch vehicle from the nose-first
`orientation to a tail-first orientation before landing;
`
`
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`14
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`14[h] means for reigniting at least one of the one or more rocket engines
`when the launch vehicle is in the tail-first orientation to decelerate
`the vehicle;
`14[i] means for landing at least a portion of the launch vehicle on the sea
`going platform in a body of water, wherein the means for landing
`include means for landing in the tail-first orientation while the one
`or more rocket engines are thrusting; and
`14[j] means for launching at least a portion of the launch vehicle from the
`launch site a second time.
`
`(‘321 patent at 10:45-67 (Claim 14) (bracketed notations (e.g., “[a],” “[b],” etc.)
`
`added to facilitate easier identification of the specific claim limitations in this
`
`Petition).)
`
`Dependent claim 15 merely adds detail about the vehicle landing; it adds
`
`nothing of patentable significance, as shown in Part VII below.
`
`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
`
`C.F.R. § 42.100(b). As the Federal Circuit has recognized, the “broadest
`
`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-
`
`78 (Fed. Cir. 2008).) Petitioner accordingly requests that the Board adopt the
`
`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 14 as the
`
`vehicle that is launched and reoriented, and a portion of which is 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 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. ¶ 54; see also Ex. 1110 at 30 (“The launch vehicle is
`
`the rocket, including all of the stages, that is used to launch a payload into
`
`
`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);
`
`M.P.E.P. § 2111. Petitioner does not concede that those constructions would be
`
`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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`space.”).) Petitioner accordingly requests that the Board find that the broadest
`
`reasonable construction of “space launch vehicle” 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
`
`independent claim 14 to describe the positioning of the “space launch vehicle” or
`
`“at least a portion of the launch vehicle” at different phases of operation. As
`
`discussed above, to date, all space launch vehicles have included a booster stage.
`
`The specification of the ‘321 patent explains that “the booster stage 110
`
`[Fig. 1] can reenter the atmosphere nose-first, and then reorient to a tail-first
`
`orientation just prior to landing.” (’321 patent at 4:6-8, Fig. 1.) 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 s

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