Trials@uspto.gov
`571–272–7822
`
`
`
`Paper 7
`Entered: September 24, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`LINDSAY CORPORATION,
`Petitioner,
`
`v.
`
`VALMONT INDUSTRIES, INC.,
`Patent Owner.
`_______________
`
`Case IPR2015-01039
`Patent 7,003,357 B1
`_______________
`
`
`
`Before SALLY C. MEDLEY, ROBERT J. WEINSCHENK, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`WEINSCHENK, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`

`
`IPR2015-01039
`Patent 7,003,357 B1
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`
`I. INTRODUCTION
`
`Lindsay Corporation (“Petitioner”) filed a Petition (Paper 1, “Pet.”)
`
`requesting an inter partes review of claims 1–18 of U.S. Patent No.
`
`7,003,357 B1 (Ex. 1001, “the ’357 patent”). Valmont Industries, Inc.
`
`(“Patent Owner”) filed a Preliminary Response (Paper 6, “Prelim. Resp.”) to
`
`the Petition. We have jurisdiction under 35 U.S.C. § 314, which provides
`
`that an inter partes review may not be instituted “unless . . . there is a
`
`reasonable likelihood that the petitioner would prevail with respect to at least
`
`1 of the claims challenged in the petition.” 35 U.S.C. § 314(a).
`
`For the reasons set forth below, Petitioner demonstrates a reasonable
`
`likelihood of prevailing in showing the unpatentability of claims 1–15, 17,
`
`and 18 of the ’357 patent, but does not demonstrate a reasonable likelihood
`
`of prevailing in showing the unpatentability of claim 16. Accordingly, we
`
`institute an inter partes review as to claims 1–15, 17, and 18 of the ’357
`
`patent on the grounds specified below.
`
`A.
`
`Related Proceedings
`
`The parties indicate that the ’357 patent is at issue in the following
`
`district court case: Valmont Industries, Inc. v. Lindsay Corp., No. 1:15-cv-
`
`00042 (D. Del.). Pet. 1; Paper 5, 2.
`
`B.
`
`The ’357 Patent
`
`The ’357 patent relates to remotely controlling irrigation equipment.
`
`Ex. 1001, Abstract. The ’357 patent describes a handheld remote user
`
`interface (“RUI”) with a display and keypad that can communicate with and
`
`control irrigation equipment. Id. at col. 3, ll. 21–29. According to the ’357
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`patent, the RUI communicates with the irrigation equipment using wireless
`
`telemetry technology. Id. at col. 3, ll. 26–29.
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`IPR2015-01039
`Patent 7,003,357 B1
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`
`C.
`
`Illustrative Claim
`
`
`
`Claims 1 and 16–18 are independent. Claim 1 is reproduced below.
`
`1. A remote user interface for reading the status of and
`controlling irrigation equipment, comprising:
`
`a hand-held display;
`
`a processor;
`
`wireless telemetry means for transmitting signals and
`data between the remote user interface and the irrigation
`equipment; and
`
`software operable on said processor for:
`
`(a) displaying data received from the irrigation
`equipment as a plurality of GUIs that are configured to
`present said data as status information on said display;
`
`(b) receiving a user’s commands to control the
`irrigation equipment, through said user’s manipulation of
`said GUIs; and
`
`(c) transmitting signals to the irrigation equipment
`to control the irrigation equipment in accordance with
`said user’s commands.
`
`Id. at col. 6, ll. 47–64.
`
`D.
`
`Evidence of Record
`
`Petitioner relies on the following references and declaration (see Pet.
`
`2–3):
`
`Reference or Declaration
`PCT Publication No. WO 99/39567 (“Scott”)
`PCT Publication No. WO 99/36297 (“Walker”)
`U.S. Patent No. 7,010,294 B1 (“Pyotsia”)
`U.S. Patent No. 6,337,971 B1 (“Abts”)
`Declaration of Craig Rosenberg, Ph.D.
`Irrigation Advances: Conserving Water, Energy and Labor,
`Spring 1996 (“AIMS”)
`
`Exhibit No.
`Ex. 1004
`Ex. 1005
`Ex. 1007
`Ex. 1008
`Ex. 1009
`Ex. 1012
`
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`IPR2015-01039
`Patent 7,003,357 B1
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`E.
`
`Asserted Grounds of Unpatentability
`
`Petitioner asserts that the challenged claims are unpatentable on the
`
`following grounds (see Pet. 3):
`
`Claim(s)
`1, 6–14, and 16–18
`1–3, 6–14, and 16–18
`
`Basis
`35 U.S.C. § 102(b)
`35 U.S.C. § 103(a)
`
`3
`
`35 U.S.C. § 103(a)
`
`4, 5, 11, and 15
`
`35 U.S.C. § 103(a)
`
`II. ANALYSIS
`
`A. Claim Construction
`
`Reference(s)
`Scott
`Scott, Pyotsia, and
`AIMS
`Scott, Pyotsia, and
`Walker
`Scott, Pyotsia, and
`Abts
`
`The claims of an unexpired patent are interpreted using the broadest
`
`reasonable interpretation in light of the specification of the patent in which
`
`they appear. 37 C.F.R. § 42.100(b); see In re Cuozzo Speed Techs., LLC,
`
`793 F.3d 1268, 1278–79 (Fed. Cir. 2015). On this record and for purposes
`
`of this decision, we determine that only the claim terms addressed below
`
`require express construction.
`
`1.
`
`wireless telemetry means
`
`Independent claim 1 recites “wireless telemetry means for
`
`transmitting signals and data between the remote user interface and the
`
`irrigation equipment.” Ex. 1001, col. 6, ll. 51–53. Independent claims 16–
`
`18 recite similar limitations. Id. at col. 8, ll. 4–6, col. 8, ll. 18–20, col. 8, ll.
`
`31–33. The parties agree that “wireless telemetry means” is a means-plus-
`
`function limitation under 35 U.S.C. § 112 ¶ 6. Pet. 7–8, Prelim. Resp. 1.
`
`Petitioner argues that the “wireless telemetry means” is described at column
`
`6, lines 11–24 of the ’357 patent (Pet. 8), which states the following:
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`Patent 7,003,357 B1
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`To enable the RUI 14 to exchange information with the
`irrigation components and ancillary equipment, the PDA is
`preferably coupled with wireless telemetry technology, such as
`RF telemetry or cell phone telemetry. It is contemplated that
`the PDA and wireless telemetry technology could be combined
`into a single integrated RUI 14 such as the Sprint TP3000,
`Kyocera 6035, Samsung 1300, or similar device that would
`enable the user to monitor and control the subject equipment
`from virtually anywhere. It is further contemplated that the
`RUI 14 could be comprised of a PDA that is interfaced with a
`cellular or digital telephone using an interface cable.
`Additionally, it is contemplated that the RUI 14 could be
`comprised of a PDA that is interfaced with a VHF/UHF or
`spread spectrum radio using an interface cable.
`
`Ex. 1001, col. 6, ll. 11–24 (emphasis added). The above portion of the ’357
`
`patent links the claimed “wireless telemetry means” to several corresponding
`
`structures, namely a cellular telephone, a digital telephone, a VHF/UHF
`
`radio, and a spread spectrum radio. Id. Therefore, on this record and for
`
`purposes of this decision, we determine that the corresponding structure for
`
`the “wireless telemetry means” is “a cellular telephone, a digital telephone, a
`
`VHF/UHF radio, or a spread spectrum radio, and equivalent structures.”
`
`Patent Owner argues that the Petition should be denied because, even
`
`though Petitioner identifies portions of the ’357 patent that describe the
`
`corresponding structure for the “wireless telemetry means,” Petitioner does
`
`not provide a proposed construction. Prelim. Resp. 2–4. On this record,
`
`Patent Owner does not persuade us that the alleged deficiencies warrant a
`
`denial of the Petition in this particular case.
`
`2.
`
`directly
`
`Independent claim 17 recites “to directly control the operation of the
`
`irrigation components and ancillary equipment.” Ex. 1001, col. 8, ll. 24–26.
`
`Petitioner argues that “[t]he phrase ‘directly control’ as used in the ’357
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`Patent 7,003,357 B1
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`claims requires only that user input is utilized to control . . . ‘irrigation
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`components and other ancillary equipment.’” Pet. 7. According to
`
`Petitioner, “it does not matter what communication pathway is utilized to
`
`send signals to the controlled element.” Id. Patent Owner argues that
`
`Petitioner improperly reads the word “directly” out of claim 17. Prelim.
`
`Resp. 6. Patent Owner instead proposes that the term “directly” should be
`
`construed to mean “with no intermediary.” Id.
`
`Patent Owner’s proposed construction is consistent with the
`
`customary and ordinary meaning of the term “directly.” For example, one
`
`definition of the term “directly” is “[w]ithout medium, agent, or go-
`
`between.” THE NEW INTERNATIONAL WEBSTER’S COMPREHENSIVE
`
`DICTIONARY OF THE ENGLISH LANGUAGE: ENCYCLOPEDIC EDITION, 362
`
`(1999). Patent Owner’s proposed construction also is supported by the
`
`intrinsic evidence. Specifically, Figure 1 of the ’357 patent shows a remote
`
`user interface communicating with pivot and valve controllers without an
`
`intermediary. Ex. 1001, Fig. 1. Further, during prosecution of the
`
`application to which the ’357 patent claims priority, the applicant argued
`
`that the cited prior art did not teach “directly” transmitting telemetry from a
`
`remote user interface to an irrigation component because there were
`
`intermediaries between the remote user interface and the irrigation
`
`component. Ex. 1006, 155–56. We also agree with Patent Owner that
`
`Petitioner’s proposed construction would effectively read the term “directly”
`
`out of the claims. Therefore, on this record and for purposes of this decision,
`
`we determine that the term “directly” means “with no intermediary.”
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`Patent 7,003,357 B1
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`B.
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`Asserted Grounds of Unpatentability
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`1.
`
`Anticipation of Claims 1, 6–14, and 16–18 by Scott
`
`Petitioner argues that claims 1, 6–14, and 16–18 are anticipated by
`
`Scott. Pet. 3. We have reviewed Petitioner’s assertions and supporting
`
`evidence, and, for the reasons discussed below, Petitioner does not
`
`demonstrate a reasonable likelihood of prevailing in showing that claims 1,
`
`6–14, and 16–18 are anticipated by Scott.
`
`Independent claims 1 and 16–18 recite “wireless telemetry means.”
`
`Ex. 1001, col. 6, ll. 51–53, col. 8, ll. 4–6, col. 8, ll. 18–20, col. 8, ll. 31–33.
`
`As discussed above, the parties agree that “wireless telemetry means” is a
`
`means-plus-function limitation, and we determine that the corresponding
`
`structure for the “wireless telemetry means” is “a cellular telephone, a digital
`
`telephone, a VHF/UHF radio, or a spread spectrum radio, and equivalent
`
`structures.” See supra Section II.A.1. Petitioner argues that Scott discloses
`
`transmitting signals by wires or radio link. Pet. 12, 17–18, 22–26.
`
`Petitioner does not identify, however, any portion of Scott that discloses a
`
`cellular telephone, a digital telephone, a VHF/UHF radio, or a spread
`
`spectrum radio. Id. Further, Petitioner does not argue that the wires, radio
`
`link, or laptop disclosed in Scott are structurally equivalent to a cellular
`
`telephone, a digital telephone, a VHF/UHF radio, or a spread spectrum
`
`radio. Id. Therefore, on this record, Petitioner has not shown sufficiently
`
`that Scott discloses the “wireless telemetry means” recited in all of the
`
`challenged independent claims.
`
`For at least the foregoing reasons, Petitioner does not demonstrate a
`
`reasonable likelihood of prevailing in showing that claims 1, 6–14, and 16–
`
`18 are anticipated by Scott.
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`2.
`
`Obviousness of Claims 1–3, 6–14, and 16–18 over Scott,
`Pyotsia, and AIMS
`
`Petitioner argues that claims 1–3, 6–14, and 16–18 would have been
`
`obvious over Scott, Pyotsia, and AIMS. Pet. 3. We have reviewed
`
`Petitioner’s assertions and supporting evidence, and, for the reasons
`
`discussed below, we are persuaded Petitioner demonstrates a reasonable
`
`likelihood of prevailing in showing that claims 1–3, 6–14, 17, and 18 would
`
`have been obvious over Scott, Pyotsia, and AIMS. See Pet. 29–51.
`
`However, for the reasons discussed below, we decline to institute an inter
`
`partes review on the asserted ground that claim 16 would have been obvious
`
`over Scott, Pyotsia, and AIMS.
`
`Patent Owner argues that Petitioner does not show sufficiently that
`
`AIMS is prior art. Prelim. Resp. 22–25. Patent Owner’s argument is not
`
`persuasive. The first page of AIMS includes a volume and issue number and
`
`the date “Spring 1996.” Ex. 1012, 1. AIMS appears on its face to be a
`
`printed publication from Spring 1996, and Patent Owner does not identify
`
`any evidence to the contrary. Therefore, on this record, Petitioner
`
`demonstrates a reasonable likelihood of prevailing in showing that AIMS is
`
`a prior art printed publication. Moreover, even if Petitioner does not show
`
`sufficiently that AIMS is a prior art printed publication, we are persuaded,
`
`on this record, that Petitioner demonstrates a reasonable likelihood of
`
`prevailing in showing that claims 1–3, 6–14, 17, and 18 would have been
`
`obvious over Scott and Pyotsia, without AIMS. See Pet. 29–51.
`
`Independent claim 1 recites “a hand-held display” and “wireless
`
`telemetry means for transmitting signals and data between the remote user
`
`interface and the irrigation equipment.” Ex. 1001, col. 6, ll. 49–53.
`
`Petitioner argues that Pyotsia teaches a mobile phone with a display, and
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`Scott teaches transmitting signals and data between a laptop computer and
`
`irrigation equipment. Pet. 34–35. Petitioner argues that it would have been
`
`obvious to replace the laptop computer in Scott with the mobile phone in
`
`Pyotsia. Pet. 31; Ex. 1009 ¶ 61. Patent Owner responds that Petitioner does
`
`not provide evidence showing why or how a person of ordinary skill in the
`
`art would have combined the cited features of Scott and Pyotsia. Prelim.
`
`Resp. 26–27. Patent Owner’s argument is not persuasive. Petitioner
`
`identifies evidence showing that Scott and Pyotsia relate to the same field of
`
`endeavor, and that it would have been obvious to replace the laptop
`
`computer in Scott with the mobile phone in Pyotsia to provide enhanced
`
`portability and mobility. Pet. 31; Ex. 1009 ¶ 61. On this record, Petitioner
`
`has shown sufficiently that the above limitations of claim 1 would have been
`
`obvious over Scott and Pyotsia.
`
`Independent claim 1 also recites “a processor” and “software operable
`
`on said processor” for “displaying data received from the irrigation
`
`equipment as a plurality of GUIs that are configured to present said data as
`
`status information on said display,” “receiving a user’s commands to control
`
`the irrigation equipment, through said user’s manipulation of said GUIs,”
`
`and “transmitting signals to the irrigation equipment to control the irrigation
`
`equipment in accordance with said user’s commands.” Ex. 1001, col. 6, ll.
`
`50, 54–64. Petitioner argues that Scott teaches a processor and software
`
`operable on the processor for displaying data received from the irrigation
`
`equipment as GUIs and allowing a user to transmit signals to control the
`
`irrigation equipment. Pet. 34–37. Patent Owner responds that claim 1
`
`requires a single processor for performing the above claimed functions, and
`
`contends that the application processor 84, graphical user interface 78, and
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`water resource manager 86 in Scott that Petitioner cites to as performing
`
`those functions are each separate and distinct processors. Prelim. Resp. 12–
`
`16, 19–21. Patent Owner’s argument is not persuasive. Scott teaches that
`
`application processor 84, graphical user interface 78, and water resource
`
`manager 86 are software elements stored on main memory 62, not
`
`processors. Ex. 1004, 12:29–34, 13:15–17, 15:11–13, Fig. 2. On this
`
`record, Petitioner has shown sufficiently that the above limitations of claim
`
`1 would have been obvious over Scott and Pyotsia.
`
`
`
`Dependent claims 2 and 3 recite a cellular telephone and a digital
`
`telephone, respectively. Ex. 1001, col. 6, l. 65–col. 7, l. 3. Petitioner argues
`
`that Pyotsia teaches a mobile phone that can be a cellular and/or digital
`
`telephone. Pet. 37–38. Patent Owner responds that Petitioner does not
`
`provide evidence showing why or how a person of ordinary skill in the art
`
`would have combined the cited features of Scott and Pyotsia. Prelim. Resp.
`
`28. Patent Owner’s argument is not persuasive for the same reasons
`
`discussed above with respect to claim 1.
`
`
`
`Dependent claims 10–14 recite various limitations relating to the
`
`functionality of the software executed by the processor. Ex. 1001, col. 7, ll.
`
`26–44. Petitioner argues that Scott teaches the limitations of those claims.
`
`Pet. 40–43. Patent Owner responds that, because Petitioner does not show
`
`that AIMS is prior art, Petitioner cannot rely on AIMS for any teachings or
`
`reasons to combine with respect to claims 10–14. Prelim. Resp. 29–30.
`
`Patent Owner’s argument is not persuasive. As discussed above, at this
`
`stage of the proceeding, Petitioner has shown sufficiently that AIMS is prior
`
`art, and, moreover, Petitioner has shown sufficiently that claims 10–14
`
`would have been obvious over Scott and Pyotsia, without AIMS.
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`Independent claim 16 recites “means for displaying data received
`
`from the irrigation equipment as a plurality of GUIs that are shaped to
`
`identify the type of irrigation equipment and the operational characteristics
`
`of the irrigation equipment,” and “means for directly controlling the
`
`irrigation equipment in accordance with commands received from a user.”
`
`Ex. 1001, col. 8, ll. 7–14. The parties agree that the above limitations are
`
`means-plus-function limitations under 35 U.S.C. § 112 ¶ 6. Pet. 7–8;
`
`Prelim. Resp. 1–2. Petitioner argues that the ’298 patent does not clearly
`
`link a specific structure to the functions recited in the above limitations. Pet.
`
`8. However, the asserted ground of unpatentability for claim 16 in the
`
`Petition is based on obviousness, not indefiniteness. Id. at 3. As a threshold
`
`matter, to challenge the patentability of a claim including a means-plus-
`
`function limitation as obvious under 35 U.S.C. § 103, a petition must
`
`identify the specific portions of the specification that describe the structure
`
`corresponding to the claimed function and specify where that structure is
`
`found in the cited prior art patents or printed publications. 37 C.F.R. §§
`
`42.104 (b)(3), (4). We agree with Patent Owner that, because Petitioner
`
`does not identify sufficiently any corresponding structure for the above
`
`means-plus-function limitations in claim 16, Petitioner also does not
`
`demonstrate that the cited prior art teaches or suggests those limitations.
`
`Prelim. Resp. 4–5. Thus, we decline to institute an inter partes review on
`
`the asserted ground that claim 16 would have been obvious over Scott,
`
`Pyotsia, and AIMS.
`
`Independent claim 17 recites “to directly control the operation of the
`
`irrigation components and ancillary equipment.” Ex. 1001, col. 8, ll. 24–26.
`
`Patent Owner argues that Scott and Pyotsia do not teach “directly”
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`controlling irrigation equipment or components because each requires
`
`transmitting a command through an intermediary. Prelim. Resp. 31–34.
`
`Specifically, Patent Owner argues that the communications interfaces in
`
`Figure 1 of Scott are intermediaries between the computer and the irrigation
`
`equipment and components. Id. at 33. Patent Owner’s argument is not
`
`persuasive. Although depicted as separate boxes 10 and 12 in Figure 1,
`
`Scott teaches that the communications interfaces in Figure 1 can be part of
`
`the computer. Ex. 1004, 15:5–11. As such, the computer in Figure 1 of
`
`Scott can transmit commands directly to the pump and valve controllers,
`
`similar to how the remote user interface in Figure 1 of the ’357 patent can
`
`transmit commands directly the pivot and valve controllers. On this record,
`
`Petitioner has shown sufficiently that claim17 would have been obvious over
`
`Scott and Pyotsia.
`
`On this record and at this stage of the proceeding, Petitioner
`
`demonstrates a reasonable likelihood of prevailing in showing that claims 1–
`
`3, 6–14, 17, and 18 would have been obvious over Scott and Pyotsia, or over
`
`Scott, Pyotsia, and AIMS. For the reasons discussed above, we decline to
`
`institute an inter partes review on the asserted ground that claim 16 would
`
`have been obvious over Scott, Pyotsia, and AIMS.
`
`3.
`
`Obviousness of Claim 3 over Scott, Pyotsia, and Walker
`
`Petitioner argues that claim 3 would have been obvious over Scott,
`
`Pyotsia, and Walker. Pet. 3. Petitioner explains that this ground is
`
`applicable if the combination of Scott, Pyotsia, and AIMS discussed above
`
`does not teach a digital telephone. Pet. 52. In view of the asserted grounds
`
`of unpatentability discussed above on which we institute an inter partes
`
`review of claim 3, we exercise our discretion and do not institute an inter
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`partes review on this alternative ground proposed by Petitioner. See 35
`
`U.S.C. § 314(a); 37 C.F.R. § 42.108(a), (b).
`
`4.
`
`Obviousness of Claims 4, 5, 11, and 15 over Scott,
`Pyotsia, and Abts
`
`Petitioner argues that claims 4, 5, 11, and 15 would have been obvious
`
`over Scott, Pyotsia, and Abts. Pet. 3. We have reviewed Petitioner’s
`
`assertions and supporting evidence, and, for the reasons discussed below,
`
`Petitioner demonstrates a reasonable likelihood of prevailing in showing that
`
`claims 4, 5, 11, and 15 would have been obvious over Scott, Pyotsia, and
`
`Abts. See Pet. 53–59.
`
`Dependent claims 4 and 5 recite a spread spectrum radio and a
`
`VHF/UHF radio, respectively. Ex. 1001, col. 7, ll. 4–8. Petitioner argues
`
`that Abts teaches a spread spectrum radio and a VHF/UHF radio. Pet. 54,
`
`56–57. Patent Owner responds that Petitioner does not provide evidence
`
`showing why or how a person of ordinary skill in the art would have
`
`combined the cited features of Scott, Pyotsia, and Abts. Prelim. Resp. 36–
`
`38. Patent Owner’s argument is not persuasive. Petitioner identifies
`
`evidence showing that Scott teaches using a radio link to transmit signals
`
`between a laptop computer and irrigation equipment, and, thus, it would
`
`have been obvious to combine the specific types of radio links taught by
`
`Abts with Scott. Pet. 54; Ex. 1009 ¶ 70. On this record, Petitioner has
`
`shown sufficiently that claims 4 and 5 would have been obvious over Scott,
`
`Pyotsia, and Abts.
`
`Dependent claim 11 recites that the shape of the plurality of GUIs
`
`changes in response to a change in status of the irrigation equipment. Ex.
`
`1001, col. 7, ll. 29–32. Petitioner argues that Abts teaches using shapes to
`
`display the status of irrigation equipment on a handheld display. Pet. 58.
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`Patent Owner responds that Petitioner does not provide evidence showing
`
`why or how a person of ordinary skill in the art would have combined the
`
`cited features of Scott, Pyotsia, and Abts. Prelim. Resp. 36–38. Patent
`
`Owner’s argument is not persuasive. Petitioner identifies evidence showing
`
`that Scott and Abts both teach using shapes to display the status of irrigation
`
`equipment, and, thus, it would have been obvious to implement that feature
`
`from Scott on the handheld display taught by Abts. Pet. 54–55; Ex. 1009 ¶
`
`72. On this record, Petitioner has shown sufficiently that claim 11 would
`
`have been obvious over Scott, Pyotsia, and Abts.
`
`Dependent claim 15 recites that the software monitors the operational
`
`status of the irrigation equipment and warns a user when the operational
`
`status does not fall within a previously defined operational status range. Ex.
`
`1001, col. 7, ll. 46–50. Petitioner argues that Abts teaches issuing an alarm
`
`when an input value deviates from a reference value stored in memory. Pet.
`
`58–59. Patent Owner responds that Petitioner does not provide evidence
`
`showing why or how a person of ordinary skill in the art would have
`
`combined the cited features of Scott, Pyotsia, and Abts. Prelim. Resp. 36–
`
`38. Patent Owner’s argument is not persuasive. Petitioner identifies
`
`evidence showing that Pyotsia teaches using an alarm, and, thus, it would
`
`have been obvious to combine the specific type of alarm taught by Abts with
`
`Scott and Pyotsia. Pet. 55–56; Ex. 1009 ¶ 74. On this record, Petitioner has
`
`shown sufficiently that claim 15 would have been obvious over Scott,
`
`Pyotsia, and Abts.
`
`Patent Owner points out that claims 4, 5, 11, and 15 depend from
`
`claim 1, and that the asserted ground of unpatentability for claims 4, 5, 11,
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`and 15 relies on arguments from the asserted ground that Scott anticipates
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`14
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`IPR2015-01039
`Patent 7,003,357 B1
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`claim 1. Prelim. Resp. 38–39. According to Patent Owner, because Scott
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`does not anticipate claim 1, the Petition also should be denied with respect to
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`claims 4, 5, 11, and 15. Id. Patent Owner’s argument is not persuasive. As
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`discussed above, although Petitioner does not show sufficiently that claim 1
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`is anticipated by Scott, Petitioner shows sufficiently that claim 1 would have
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`been obvious. See supra Section II.B.2. Thus, on this record, we are not
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`persuaded that Petitioner’s citation to arguments from the asserted ground
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`that Scott anticipates claim 1 warrants denial of the asserted ground of
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`unpatentability for claims 4, 5, 11, and 15.
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`III. CONCLUSION
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`Petitioner demonstrates a reasonable likelihood of prevailing on its
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`challenge to the patentability of claims 1–15, 17, and 18 of the ’357 patent
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`as unpatentable under 35 U.S.C. § 103(a). However, we decline to institute
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`an inter partes review on the asserted grounds of unpatentability for claim
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`16. At this stage in the proceeding, we have not made a final determination
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`with respect to the patentability of any of the challenged claims.
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`IV. ORDER
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`In consideration of the foregoing, it is hereby:
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`
`
`ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes
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`review is hereby instituted as to claims 1–15, 17, and 18 of the ’357 patent
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`on the following grounds:
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`A. Claims 1–3, 6–14, 17, and 18 as unpatentable under 35 U.S.C.
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`§ 103(a) as obvious over Scott and Pyotsia, or Scott, Pyotsia, and AIMS; and
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`B.
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`Claims 4, 5, 11, and 15 as unpatentable under 35 U.S.C.
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`§ 103(a) as obvious over Scott, Pyotsia, and Abts;
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`15
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`IPR2015-01039
`Patent 7,003,357 B1
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`FURTHER ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter
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`partes review of the ʼ357 patent is hereby instituted commencing on the
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`entry date of this Order, and, pursuant to 35 U.S.C. § 314(c) and 37 C.F.R.
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`§ 42.4, notice is hereby given of the institution of a trial; and
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`
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`FURTHER ORDERED that the trial is limited to the grounds
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`identified, and no other grounds are authorized.
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`
`
`16
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`

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`IPR2015-01039
`Patent 7,003,357 B1
`
`PETITIONER:
`
`Scott R. Brown
`Matthew B. Walters
`HOVEY WILLIAMS LLP
`sbrown@hoveywilliams.com
`mwalters@hoveywilliams.com
`
`PATENT OWNER:
`
`P. Weston Musselman, Jr.
`Ricardo J. Bonilla
`FISH & RICHARDSON P.C.
`musselman@fr.com
`IPR25199-0016IP1@fr.com
`
`17