Trials@uspto.gov Paper 41
`571-272-7822
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`Date Entered: August 19, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SONY CORPORATION, SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG DISPLAY CO., LTD.,
`Petitioner,
`
`v.
`
`SURPASS TECH INNOVATION LLC,
`Patent Owner.
`____________
`
`Case IPR2015-00863
`Patent 7,202,843 B2
`____________
`
`Before SALLY C. MEDLEY, BRYAN F. MOORE, and
`BETH Z. SHAW, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`INTRODUCTION
`I.
`We have jurisdiction to hear this inter partes review under 35 U.S.C.
`§ 6(c). This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a)
`and 37 C.F.R. § 42.73. For the reasons that follow, we enter adverse
`judgment against Patent Owner with respect to claims 4, 8, and 9 of U.S.
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`571-272-7822
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`Date Entered: August 19, 2016
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SONY CORPORATION, SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG DISPLAY CO., LTD.,
`Petitioner,
`
`v.
`
`SURPASS TECH INNOVATION LLC,
`Patent Owner.
`____________
`
`Case IPR2015-00863
`Patent 7,202,843 B2
`____________
`
`Before SALLY C. MEDLEY, BRYAN F. MOORE, and
`BETH Z. SHAW, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`INTRODUCTION
`I.
`We have jurisdiction to hear this inter partes review under 35 U.S.C.
`§ 6(c). This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a)
`and 37 C.F.R. § 42.73. For the reasons that follow, we enter adverse
`judgment against Patent Owner with respect to claims 4, 8, and 9 of U.S.
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`Patent No. 7,202,843 B2; determine that Petitioner has shown by a
`preponderance of the evidence that claims 5 and 6 of U.S. Patent
`No. 7,202,843 B2 are unpatentable; and determine that Petitioner has not
`shown by a preponderance of the evidence that claim 7 of U.S. Patent
`No. 7,202,843 B2 is unpatentable.
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`
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`A. Procedural History
`Petitioner, Sony Corporation, Samsung Electronics Corporation, and
`Samsung Display Corporation, filed a Petition requesting an inter partes
`review of claims 4–9 of U.S. Patent No. 7,202,843 B2 (Ex. 1001, “the ’843
`patent”). Paper 4 (“Pet.”). Patent Owner, Surpass Tech Innovation LLC,
`filed a Preliminary Response. Paper 10 (“Prelim. Resp.”). Upon
`consideration of the Petition and Preliminary Response, on September 8,
`2015, we instituted an inter partes review of claims 4–9, pursuant to 35
`U.S.C. § 314. Paper 11 (“Dec.”).
`Subsequent to institution, Patent Owner filed a Patent Owner
`Response (Paper 21 (“PO Resp.”)) and Petitioner filed a Reply (Paper 27
`(“Pet. Reply”)). Petitioner filed a Motion to Exclude (Paper 30; “Pet. Mot.
`Exclude”) Exhibit 2007 and Paragraph 39 of Exhibit 2022. Patent Owner
`filed an Opposition to the Motion to Exclude (Paper 32; “PO Exclude
`Opp.”), and Petitioner filed a Reply (Paper 33; “Pet. Exclude Reply”).
`An oral hearing was held on May 12, 2016, and a transcript of the
`hearing is included in the record (Paper 40; “Tr.”). On May 13, 2016, Patent
`Owner was ordered to show cause why judgment should not be entered
`against it with respect to claims 4, 8, and 9 of the ’843 patent. See 37 C.F.R.
`§ 42.73(b)(3). Paper 38 (“Order”). On May 23, 2016, Patent Owner
`responded to the Order. Paper 39 (“Response”).
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`B. Related Proceedings
`According to Petitioner, the ’843 patent is involved in the following
`lawsuit: Surpass Tech Innovation LLC v. Samsung Display Co., Ltd. et al.,
`No. 14-cv-00337-LPS (D. Del.). Pet. 1.
`C. The ’843 Patent
`The ’843 patent relates to a method and system for driving an LCD
`panel. The panel includes a plurality of scan lines, a plurality of data lines,
`and a plurality of pixels. Each pixel is connected to a corresponding scan
`line and a corresponding data line, and each pixel includes a liquid crystal
`device and a switching device connected to the corresponding scan line, data
`line, and liquid crystal device. Ex. 1001, 2:19–26, Fig. 4. The system
`includes a driving circuit for applying a plurality of data impulses to a pixel
`electrode within one frame period to control the transmission rate of the
`liquid crystal device. Id. at 1:8–12, 4:34–40.
`D. Illustrative Claim
`Independent claim 4 is illustrative and reproduced below. Claims 5–9
`depend either directly or indirectly from claim 4.
`Claim 4, reproduced below, is illustrative.
`4. A method for driving a liquid crystal display (LCD)
`panel, the LCD panel comprising:
`a plurality of scan lines;
`a plurality of data lines; and
`a plurality of pixels, each pixel being connected to a
`corresponding scan line and a corresponding data line, and each
`pixel comprising a liquid crystal device and a switching device
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`connected to the corresponding scan line, the corresponding data
`line, and the liquid crystal device, and
`the method comprising:
`receiving continuously a plurality of frame data;
`generating a plurality of data impulses for each pixel
`within every frame period according to the frame data; and
`applying the data impulses to the liquid crystal device of
`one of the pixels within one frame period via the data line
`connected to the pixel in order to control a transmission rate of
`the liquid crystal device of the pixel.
`
`Id. at 7:1–19.
`
`E. Grounds of Unpatentability
`We instituted trial based on the sole ground that claims 4–9 are
`unpatentable under 35 U.S.C. § 103(a) based on Suzuki1 and Nitta.2 Dec.
`
`
`II. ANALYSIS
`A. Entry of Adverse Judgment as to claims 4, 8, and 9
`Claims 4–9 of the ’843 patent are the sole claims involved in this
`proceeding. Dec. On February 26, 2016, claims 4, 8, and 9 were
`determined unpatentable in a related proceeding. See, Sharp Corp. v.
`Surpass Tech Innovation LLC, IPR2015-00021 (PTAB February 26, 2016),
`Paper 44 (“Final Written Decision”). Just prior to the scheduled hearing
`date for this proceeding, and on May 3, 2016, Patent Owner filed an updated
`mandatory notice indicating that the deadline to file a notice of appeal of the
`Final Written Decision in IPR2015-00021 had expired and that Patent
`
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`1 U.S. Patent Application Publication 2003/0156092 A1, published Aug. 21,
`2003 (Ex. 1003) (“Suzuki”).
`2 Japanese Laid-Open Application No. 2002-132224, published May 9, 2002
`(Ex. 1005) (“Nitta”).
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`Owner had not filed a notice of appeal. Paper 35.
`During the May 12, 2016, hearing, counsel for Patent Owner implied
`that Patent Owner would take no action to appeal the Final Written Decision
`in IPR2015-00021, that the time to do so had expired, and that claims 4, 8,
`and 9 are unpatentable. Tr. 3–5. Based on such representations, and on May
`13, 2016, Patent Owner was ordered to show cause why judgment should
`not be entered against it as to claims 4, 8, and 9 of U.S. Patent No. 7,202,843
`B2 (“the ’843 patent”). See 37 C.F.R. § 42.73(b)(3). Paper 38 (“Order”).
`On May 23, 2016, Patent Owner responded to the Order. Paper 39
`(“Response”).
`In the Response, Patent Owner argues there is no Article III standing
`to adjudicate the patentability of claims 4, 8, and 9. Response 2–4. In
`particular, Patent Owner argues that because claims 4, 8, and 9 are
`unpatentable, the Patent Owner would have no Article III standing to appeal
`any judgment entered here. Response 2–3. Patent Owner argues that we
`should not enter adverse judgment against it in this case, but instead
`terminate the proceeding with respect to claims 4, 8, and 9 as moot. Id. at 4.
`Patent Owner’s arguments are not persuasive. Patent Owner has not
`shown how its alleged lack of standing post judgment bears on whether we
`should enter judgment in the first instance in this proceeding. Patent Owner
`does not assert, or provide supporting legal authority to show that we lack
`authority in the first instance to enter adverse judgment against Patent
`Owner based on the circumstances before us. Importantly, Patent Owner’s
`arguments that it would not have Article III standing post judgment or that
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`we should terminate the proceeding as moot,3 do not address why the Board
`should not construe Patent Owner’s actions, including its concession of
`unpatentability with respect to claims 4, 8, and 9, as a request for adverse
`judgment.
`Patent Owner failed to timely appeal the Final Written Decision in
`IPR2015-00021 and acknowledges that its claims 4, 8, and 9 are
`unpatentable. Response 1–3. Based on the particular facts of this
`proceeding, we construe Patent Owner’s actions as a concession of
`unpatentability of claims 4, 8, and 9 under 37 C.F.R. § 42.73(b)(3).
`Although we determine it necessary to address the parties’ contentions with
`respect to claim 4, because claims 5–7 depend from claim 4, we do not
`otherwise provide a written decision on the merits with respect to claims 4,
`8, and 9.
`
`B. Level of Skill of Person in the Art
`We find that the level of ordinary skill in the art is reflected by the
`prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
`Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re
`Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`
`
`3 Patent Owner does not explain sufficiently why terminating the proceeding
`as to claims 4, 8, and 9 as moot would be appropriate. Terminating a
`proceeding as moot, as opposed to entering adverse judgment generally
`would result in different outcomes, insofar as estoppel is concerned. See,
`e.g., 37 C.F.R. § 42.73(d). In the Response, Patent Owner does not address
`estoppel as a result of terminating the proceeding as moot as opposed to
`entering adverse judgment. Estoppel appears to us to be an important
`consideration, yet Patent Owner does not address estoppel in its Response,
`despite requesting us to terminate the proceeding with respect to claims 4, 8,
`and 9 as moot.
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`C. Claim Interpretation
`In an inter partes review, we construe claim terms in an unexpired
`patent according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
`also In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1277–78 (Fed. Cir.
`2015) (“We conclude that Congress implicitly approved the broadest
`reasonable interpretation standard in enacting the AIA.”), aff’d sub nom.
`Cuozzo Speed Techs. LLC v. Lee, 136 S. Ct. 2131 (June 20, 2016).
`Consistent with the broadest reasonable interpretation, claim terms are
`presumed to have their ordinary and customary meaning as understood by a
`person of ordinary skill in the art in the context of the entire patent
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007). Also, we must be careful not to read a particular embodiment
`appearing in the written description into the claim if the claim language is
`broader than the embodiment. See In re Van Geuns, 988 F.2d 1181, 1184
`(Fed. Cir. 1993) (“[L]imitations are not to be read into the claims from the
`specification.”). However, an inventor may provide a meaning for a term
`that is different from its ordinary meaning by defining the term in the
`specification with reasonable clarity, deliberateness, and precision. In re
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`Petitioner contends that the claim terms should be given their broadest
`reasonable interpretation in view of the specification, and should be
`interpreted in accordance with their ordinary meaning. Pet. 8. In our
`Decision to Institute, we determined that it was not necessary to interpret the
`claim 4 phrase of “applying the data impulses to the liquid crystal device of
`one of the pixels . . . to control a transmission rate of the liquid crystal
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`device of the pixel” despite Patent Owner’s proffer of a narrow
`interpretation of the phrase. Dec. 5. After institution, Patent Owner again
`argues for a narrow interpretation of the phrase without explaining why it is
`necessary for us to provide an interpretation of the phrase. PO Resp. 14–22.
`Petitioner argues that we need not interpret the phrase to resolve the issues
`before us. Reply 18. Based on the record before us, we do not perceive any
`reason or evidence that now compels any deviation from our initial
`determination. Accordingly, we determine it unnecessary to interpret any
`terms of the challenged claims.
`
`D. Principles of Law
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art; and (4) objective evidence of
`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`In that regard, an obviousness analysis “need not seek out precise
`teachings directed to the specific subject matter of the challenged claim, for
`a court can take account of the inferences and creative steps that a person of
`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; see also
`Translogic, 504 F.3d at 1259.
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`E. Obviousness of Claims 5–7 over Suzuki and Nitta
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`Petitioner asserts that claims 5–7 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combination of Suzuki and Nitta. Pet. 9–25.
`To support its contentions, Petitioner provides detailed explanations as to
`how the prior art meets each claim limitation. Id. Petitioner also relies upon
`a Declaration of Thomas Credelle (Ex. 1014) to support its position.
`Suzuki
`Suzuki describes a display control device for controlling display data
`to be displayed on a liquid crystal panel. Ex. 1003 ¶ 2. A timing control
`unit receives display data from an operational unit in succession, and outputs
`driving signals according to the received display data in synchronization
`with the timing signals. Id. ¶ 10. As shown in Figure 1 below, LCD panel
`20 is comprised of a plurality of pixels P (liquid crystal cells) formed in a
`matrix, which is driven by gate driver 18 and source driver 16. Id. ¶¶ 38, 47,
`Fig. 1.
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`Figure 1 of Suzuki shows a display control device for a LCD display.
`
`Data memory unit 12a of frame memory 12 stores image data to be
`supplied to each single frame period. Id. ¶ 9, Fig. 1. Data conversion part
`10 generates a plurality of pixel data for each pixel in each frame period
`using frame data stored in data memory unit 12a. Id. ¶¶ 40, 41. Source
`driver 16 generates applied voltages VS that correspond to pixel data
`generated by conversion part 10. Id. ¶¶ 46, 47. Figure 2, reproduced below,
`“is a timing chart showing how data is written to a pixel in the operation of
`the first embodiment.” Id. ¶ 28.
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`Figure 2 of Suzuki shows a timing chart.
`Figure 2 shows how a single pixel (liquid crystal cell) is written with
`data in the LCD device. Id. ¶ 52. Image data to increase transmittance is
`supplied for a frame period FL1, and image data to decrease transmittance is
`supplied for a frame period FL2. Id. In the first subfield (SF1) of the first
`frame (FL1), an overshoot operation is performed, where the transmittance
`of the liquid crystal cell goes up and exceeds the target value. Id. ¶¶ 53, 54.
`In the second subfield (SF2) of the first frame (FL1), an overdrive operation
`is performed, whereby the transmittance of the liquid crystal cell changes to
`the target value. Id. Multiple pulses are applied to each pixel by the source
`driver 16 within one frame period in order to control the transmission rate of
`the liquid crystal device. Id. ¶ 47.
`Nitta
`Nitta describes a drive device for driving a thin-film transistor (TFT)
`liquid crystal panel display, known as an active matrix liquid crystal device
`(AMLCD) that addresses the known problem of degraded images displayed
`on LCDs. Ex. 1005 ¶¶ 1, 2. In particular, Nitta’s drive method makes it
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`possible for the response speed of the liquid crystal to be one frame period
`or less, providing a high-picture-quality liquid crystal display device. Id. ¶
`8. Figure 3 of Nitta, as annotated by Petitioner in its Petition, is reproduced
`below.
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`Figure 3 of Nitta as annotated in the Petition.
`Nitta describes a plurality of scan lines connected to scan driver 103-1
`and 103-2, a plurality of data lines connected to signal driver 102, and a
`plurality of pixels (pixel A and pixel B) in the TFT liquid crystal panel. Id.
`¶¶ 9, 32.
`Analysis
`Claims 5–7 depend from claim 4 and necessarily include all of the
`limitations of claim 4. Accordingly, we first address the contentions made
`by Petitioner as to how the combination of Suzuki and Nitta render obvious
`claim 4. Specifically, Petitioner contends that Suzuki describes a method for
`driving a LCD panel. Pet. 9–10; Ex. 1003 ¶¶ 2, 10. Petitioner also contends
`that Suzuki describes a LCD panel having a plurality of pixels P, which are
`formed in a matrix and comprise liquid crystal cells, whereby the LCD panel
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`is driven by a source driver 16 and gate driver 18 for controlling the LCD
`panel. Pet. 12–13; Ex. 1003 ¶¶ 4, 47, Fig. 1. Petitioner asserts, with
`supporting evidence that gate driver 18 is used for sending scan signals on
`scan lines (also known as gate lines) of an LCD panel and that source driver
`16 is used for sending data signals on data lines of the LCD panel. Pet. 12;
`Ex. 1003 ¶ 38, Fig. 1; Ex. 1014 ¶¶ 38–39, 45–46. Petitioner further contends
`that Suzuki describes a data memory unit 12a that continuously receives a
`plurality of frame data, a data conversion part 10 that generates a plurality of
`data impulses, and a source driver 16 that applies data impulses to each pixel
`within one frame period to control a transmission rate of the pixel. Pet. 16–
`21.
`
`Although Suzuki describes an LCD panel 20, gate driver 18, and
`source driver 16, Suzuki does not show the details of the lines from the gate
`and source drivers to individual transistors (switching devices) of individual
`pixels as claimed. To show such detail, Petitioner relies on Nitta for its
`description of a conventional AMLCD panel with a plurality of scan and
`data lines connected to each pixel of each TFT of a LCD. Id. at 12–15; Ex.
`1005, Fig. 3; Ex. 1014 ¶¶ 53–54. Petitioner explains that a person of
`ordinary skill in the art would have known of such details of Nitta’s
`AMLCD panel, which are lacking in Suzuki, at the time of the invention for
`conventional LCD arrangements. See, e.g., Pet. 10.
`Petitioner provides a rationale as to why a person of ordinary skill in
`the art would have combined the details of Nitta’s scan lines and data lines
`connected to each pixel of each TFT of a LCD. In particular, Petitioner
`argues, with supporting evidence that both Suzuki and Nitta are directed to
`the same recognized problem in the field of LCD devices—the blurring
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`phenomena in the display of motion pictures caused by slow response time
`of liquid crystal cells. Pet. 10–11; Ex. 1003 ¶ 4; Ex. 1005 ¶¶ 2–3. Petitioner
`further contends that both Nitta and Suzuki sought to solve the blurring
`problem by applying multiple data signals to each pixel of an LCD device
`during every frame period to accelerate the liquid crystal response speed. Id.
`Petitioner concludes that it would have been obvious to combine the driving
`circuit of Suzuki with the conventional LCD panel of Nitta to avoid blurring
`in the display of moving pictures on LCD devices. Pet. 12; Ex. 1014 ¶¶ 53–
`54.
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`We are persuaded by Petitioner’s showing, which we adopt as our
`own, that Suzuki and Nitta in combination describe all of the elements and
`steps of claim 4, and that Suzuki in combination with Nitta would have been
`obvious for the reasons provided by Petitioner. Indeed, in KSR Int’l Co. v.
`Teleflex Inc., the Court explained that if a feature has been used to improve
`one device, and a person of ordinary skill in the art would have recognized
`that it would improve a similar device in that field or another, implementing
`that feature on the similar device is likely obvious. KSR Int’l Co. v. Teleflex
`Inc., 550 U.S. 398, 417 (2007). Here, a person of ordinary skill in the art
`would have recognized that the driving circuit of Suzuki would have
`improved the conventional LCD panel of Nitta to avoid blurring in the
`display of moving pictures on the LCD device.
`Patent Owner does not argue that the combination of Suzuki and Nitta
`does not describe all of the elements and steps of claim 4. PO Resp. Patent
`Owner argues, however, that the combination of Suzuki and Nitta is
`insufficiently supported because Petitioner has not shown that Suzuki’s
`driving method is compatible with the AMLCD panel of Nitta. PO Resp.
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`22–35.
`We disagree with Patent Owner that Petitioner did not show that
`Suzuki’s driving method is compatible with the AMLCD panel of Nitta. In
`particular, Thomas Credelle, in support of the Petition, explains that an
`AMLCD is a LCD in which the pixels of the panel include switching
`devices, such as thin film transistors (“TFT”; field effect transistors (FET))
`that operate as switches in the pixels. Ex. 1014 ¶ 44.4 He also explains that
`a person of ordinary skill in the art would have understood that a gate driver,
`such as the one shown in Suzuki, would have been used to send scan
`voltages to pixels of a conventional AMLCD panel in order to activate the
`switching device of the pixel. Id. ¶ 45.
`Thus, we understand that although Suzuki does not explicitly describe
`that its LCD is an AMLCD (one with switching transistors), Suzuki does
`describe a gate driver and a source driver. See, e.g., Ex. 1003, Fig. 1. A
`person of ordinary skill in the art would have understood Suzuki’s gate
`driver and source driver to function to drive the respective gates and sources
`of field effect transistors connected to pixels. Pet. 13–14; Reply 8; Ex. 1014
`¶¶ 46; Ex. 1020 ¶¶ 8–11. Although Mr. Bohannon, testifying for Patent
`Owner, states that the use of terminology such as “gate” and “source” is not
`dispositive of the type of LCD panel described in Suzuki, his explanation is
`conclusory. He testifies that:
`Suzuki’s description of source and gate signals are in accordance
`with a wide variety of LCDs formed by a matrix of overlapping
`
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`4 In contrast, the record evidence shows that a person of ordinary skill in the
`art at the time of the invention would have understood that passive matrix
`LCD panels do not include transistors. Ex. 1019, 81:8–83:3; Ex. 1020 ¶¶ 8,
`10.
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`row-select and columns data electrodes where the row electrodes
`are used to “select” the pixels driven by the voltages “applied”
`by the column electrodes. Therefore, I do not agree that this
`disclosure
`indicates with certainty
`that Suzuki discloses
`AMLCD.
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`Ex. 2022 ¶ 40. We do not give much weight to the above testimony
`because it is conclusory. Mr. Bohannon fails to explain, or give examples,
`of the “wide variety” of LCDs that are not AMLCD in which; for example, a
`gate driver and source driver are used to activate pixels like those that
`Suzuki describes. On the other hand, we give substantial weight to Mr.
`Credelle’s testimony that a person of ordinary skill in the art would have
`understood that gate drivers and source drivers are compatible (are used) in
`AMLCDs. Ex. 1014 ¶¶ 46; Ex. 1020 ¶¶ 8–11. In addition, Mr. Bohannon
`testified during cross-examination that the terms “gate” and “source” are
`terms used with active matrix. Ex. 1019, 141:5–10. As discussed above, we
`have considered all of Patent Owner’s arguments spanning pages 22 to 35 of
`the Patent Owner Response but are not persuaded that Petitioner has not
`shown that Suzuki and Nitta are compatible. None of those arguments, or
`evidence in support of the arguments, outweighs the evidence before us that
`Suzuki is directed to an AMLCD based on the description of gate and source
`drivers and what those terms would have conveyed to a person of ordinary
`skill in the art at the time of the invention. For all of the above reasons, we
`determine that Suzuki and Nitta are compatible contrary to Patent Owner’s
`assertions otherwise.
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`Claim 5 depends from claim 4 and recites delaying the frame data to
`generate a plurality of corresponding delayed frame data; and comparing
`current frame data and corresponding delayed data to determine voltage
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`values of the data impulses when generating the data impulses. Ex. 1001,
`7:20–8:3. Petitioner contends that Suzuki’s memory unit 12a stores image
`data of a frame immediately preceding and generates a plurality of
`corresponding delayed frame data by storing the image data of the preceding
`frame. Pet. 22; Ex. 1003 ¶¶ 9, 40. Petitioner further contends that Suzuki
`describes data comparison unit 30 that compares current frame data and
`delayed frame data stored in data memory unit and outputs the difference in
`data as a difference signal DIF. Id. Petitioner argues that operational unit
`32 then determines voltage values OSD and ODD of the data impulses for
`each pixel of the LCD panel based on the difference (DIF) between the
`current frame data and delayed frame data and source driver 16 generates
`data impulses VS according to voltage values OSD and ODD. Pet. 22–23;
`Ex. 1003 ¶¶ 47, 52–54, Figs. 1, 2.
`Patent Owner argues that Petitioner has not explained how operational
`unit 32 determines voltage values OSD and ODD based on the difference
`(DIF) between current frame data and delayed frame data. PO Resp. 36.
`Petitioner, however, does explain how operational unit 32 determines
`voltage values OSD and ODD based on the difference (DIF) between current
`frame data and delayed frame data. Pet. 22–23; Reply 13–15. Moreover,
`Patent Owner’s witness Mr. Bohannon agrees. Ex. 2022 ¶ 45 (explaining
`that OSD is based on the difference signal DIF from data comparison unit 30
`and that the DIF signal is also used to calculate an ODD overdriving signal).
`We agree with Petitioner’s showing, which we adopt as our own, that Suzuki
`in combination with Nitta renders obvious claim 5.
`Claim 6 depends from claim 5 and recites, “wherein the data impulses
`are a first data impulse and a second data impulse applied to the liquid
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`crystal device of the pixel in sequence within the frame period.” Ex. 1001,
`8:4–7. For claim 6, Petitioner relies on the combination of Suzuki and Nitta
`to meet the additional limitations of that claim. Pet. 23–24. We agree with
`Petitioner’s showing, which we adopt as our own, that Suzuki in
`combination with Nitta renders obvious claim 6. Patent Owner does not
`argue claim 6 separately. PO Resp. 35–36.
`Claim 7 depends from claim 6 and recites, “determining a difference
`between the first data impulse and the second data impulse according to the
`current frame data and the corresponding delayed frame data.” Ex. 1001,
`8:8–11. Petitioner relies on Suzuki to meet the determining step recited in
`claim 7. Pet. 25. Petitioner identifies the first data impulse as the source
`driver 16 application of a voltage VS that corresponds to the pixel data OSD
`generated by operational unit 32 and the second data impulse as the source
`driver 16 application of voltage VS that corresponds to pixel data ODD
`generated by operational unit 32. See, e.g., Pet. 19–20. Petitioner contends
`that the values of the first data impulse and the second data impulse (e.g.,
`OSD and ODD) are determined “so that the transmittance in a single frame
`period averages the target value.” Pet. 25 (citing Ex. 1003 ¶ 58). Petitioner
`then concludes that Suzuki teaches that the difference between the first data
`impulse and the second data impulse is determined based on the current
`frame data and the delayed frame data. Id.
`Patent Owner argues that while Suzuki discloses generating OSD and
`ODD, Suzuki does not disclose determining a difference between OSD and
`ODD (e.g., “determining a difference between the first data impulse and the
`second data impulse”), or any voltages that result therefrom. PO Resp. 37–
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`38. Patent Owner further argues that ODD is generated without OSD as part
`of the process for generating ODD. PO Resp. 38–39.
`Petitioner has not established by a preponderance of the evidence that
`Suzuki describes the step of “determining a difference between the first data
`impulse and the second data impulse.” Petitioner argues that Suzuki
`generates OSD and ODD, each based on DIF, such that they are different,
`satisfying the “determining a difference” language. Reply 16. However,
`generating two things to ensure that the two things are, or will be different is
`not the same as determining a difference between two things. The latter
`could include two things that are the same, while the former would exclude
`two things that are the same. Petitioner argues that Patent Owner’s
`interpretation of calculating a difference between the first data impulse and
`the second data impulse is too narrow and that its interpretation is the
`broadest most reasonable one because it encompasses determining that two
`things be different. Id. at 15–16. Patent Owner’s interpretation comports
`with the ordinary use of the words. Determining a difference between two
`impulses (voltages) which are numerical values would logically convey that
`the two values are being subtracted, thus, “calculating a difference.” On the
`other hand, Petitioner’s proffered interpretation, e.g., that the claim covers
`generating two values and ensuring that they are different, is an
`unreasonable interpretation because it is one that is inconsistent with the
`words of the phrase. Moreover, neither in the Petition nor in the Reply does
`Petitioner provide supporting evidence in the form of declaration testimony,
`for example, explaining, in light of the Specification of the ’843 patent, that
`we should interpret “determining a difference between the first data impulse
`and the second data impulse” to mean ensuring or generating two impulses
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`so that the two impulses are different. The Petition provides no evaluation
`or analysis in that regard.
`For these reasons, Petitioner has not demonstrated, by a
`preponderance of the evidence, that the combination of Suzuki and Nitta
`render obvious claim 7.
`We lastly consider Patent Owner’s arguments that an unpatentability
`ruling in the case would constitute a taking without Article III oversight. PO
`Resp. 41–43. Our reviewing court has adjudicated as to this issue, holding
`that inter partes review provisions do not violate Article III. MCM Portfolio
`LLC v. Hewlett-Packard Co., 812 F.3d 1284, 1289–94 (Fed. Cir. 2015).
`Thus, Patent Owner’s argument is not persuasive.
`F. Petitioner’s Motion to Exclude
`Petitioner moves to exclude Exhibit 2007 because the testimony is
`inadmissible hearsay under Fed. R. Evid. 802. Pet. Mot. Exclude 1. Exhibit
`2007 was submitted into evidence by Patent Owner and is described as a
`“Transcript for the Deposition of Richard Zech, Ph.D. dated November 13,
`2015, in IPR2015-00885.” PO Resp. iv. Patent Owner relies on Exhibit
`2007 in support of its proposed claim 4 interpretation of “applying the data
`impulses to the liquid crystal device of one of the pixels . . . to control a
`transmission rate of the liquid crystal device of the pixel.” See, e.g., PO
`Resp. 5–7, 15, 16, and 19. As discussed above in the claim interpretation
`section, we determined that it was not necessary to interpret the phrase to
`resolve the issues before us, and, therefore, we did not nor need not rely on
`Exhibit 2007 in that regard.
`Patent Owner also relies on Exhibit 2007 to support its argument that
`Petitioner has not shown that Suzuki is compatible with Nitta. PO Resp. 26.
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