Paper 15
`Trials@uspto.gov
`571-272-7822 Entered: February 29, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNDER ARMOUR, INC.,
`Petitioner,
`
`v.
`
`ADIDAS AG,
`Patent Owner.
`____________
`
`Case IPR2015-01532
`Patent 8,652,009 B2
`____________
`
`
`
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`JUSTIN BUSCH, Administrative Patent Judges.
`
`BUSCH, Administrative Patent Judge.
`
`DECISION
`Denying Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822 Entered: February 29, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNDER ARMOUR, INC.,
`Petitioner,
`
`v.
`
`ADIDAS AG,
`Patent Owner.
`____________
`
`Case IPR2015-01532
`Patent 8,652,009 B2
`____________
`
`
`
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`JUSTIN BUSCH, Administrative Patent Judges.
`
`BUSCH, Administrative Patent Judge.
`
`DECISION
`Denying Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`I. INTRODUCTION
`
`Petitioner, Under Armour, Inc., filed a Petition to institute an inter
`
`partes review of various claims of U.S. Patent No. 7,652,009 B2 (“the ’009
`
`patent”) pursuant to 35 U.S.C. § 311(a). Paper 1 (“Pet.”). We entered a
`
`Decision in which we instituted inter partes review based on some of
`
`Petitioner’s asserted grounds. Paper 10 (“Decision” or “Dec.”).
`
`Petitioner has now filed a Request for Rehearing of that Decision.
`
`Paper 12, (“Request” or “Reh’g Req.”). The Request seeks rehearing of the
`
`portion of our Decision denying institution of inter partes review of claim
`
`17 as anticipated by Bouve (Ex. 1004)1 and, alternatively, as anticipated by
`
`Kim (Ex. 1006)2. Reh’g Req. 1.
`
`“When rehearing a decision on petition, a panel will review the
`
`decision for an abuse of discretion.” 37 C.F.R. § 42.71(c). “The burden of
`
`showing a decision should be modified lies with the party challenging the
`
`decision[,]” which party “must specifically identify all matters the party
`
`believes the Board misapprehended or overlooked, and the place where each
`
`matter was previously addressed in a motion, an opposition, or a reply.”
`
`37 C.F.R. § 42.71(d).
`
`The Request for Rehearing is denied.
`
`II. ANALYSIS
`
`The Petition asserted that claim 17 was anticipated by Bouve, and,
`
`alternatively, that claim 17 was anticipated by Kim. Pet. 17–19, 34–36. In
`
`addition to the requirements recited in claims 13 and 14, from which claim
`
`
`
`1 U.S. Patent 5,648,768, issued July 15, 1997.
`2 U.S. Patent 5,742,922, issued Apr. 21, 1998.
`
`2
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`17 depends, claim 17 requires that “the stored route data comprises a length
`
`of the route.” Ex. 1001, 72:21–32, 72:37–38.
`
`A. Anticipation of Claim 17 by Bouve
`
`The Petition argued Bouve identified a problem in the prior art that
`
`users needed to manually estimate route distances between points of interest.
`
`Pet. 17–18 (quoting Ex. 1004, 1:28–35). The Petition asserted “Bouve
`
`improved upon the prior art system by maintaining route length information
`
`in a database.” Id. at 18 (emphasis added). In support of that assertion, the
`
`Petition pointed to Bouve’s disclosure that “The processors . . . compute the
`
`mileage indication, along the retrieved travel route(s), for each individual
`
`item of travel information which is retrieved from the data bases,” and
`
`concluded that Bouve computes mileage information along a route and route
`
`length between points of interest using route length information stored in a
`
`database. Id. (quoting Ex. 1004, 8:18–22 (underlining added). The Petition,
`
`however, failed to identify any disclosure in Bouve that “route length
`
`information” is maintained in a database. The Petition also argued Bouve
`
`discloses recommending a route “based on that stored length of a route”
`
`because Bouve allows a user to select the shortest route between two points.
`
`Id. at 19.
`
`Petitioner now argues, for the first time in its Request, that Bouve’s
`
`CPU must “know” the length of the route in order to present a shortest route
`
`option to the user. Reh’g Req. 6. Petitioner asserts Bouve discloses
`
`tabulating information “regarding the route, including mileage,” and storing
`
`3
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`
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`IPR2015-01532
`Patent 8,652,009 B2
`
`the tabulated information. Id. at 6–7 (citing Pet. 18–19 (quoting Ex. 1004,
`
`6:30–39), Dec. 7).
`
`We agree with Petitioner that Bouve discloses retrieving travel
`
`information, tabulating that information, and storing the tabulated
`
`information in a database for future use. Ex. 1004, 2:32–38. However,
`
`Petitioner’s argument that Bouve discloses mileage as part of the retrieved
`
`and tabulated information is based on, at best, a misreading of Bouve.
`
`Bouve consistently distinguishes “travel information” (which is what Bouve
`
`retrieves from storage, tabulates, and possibly re-stores) from mileage.
`
`Bouve discusses travel information as being stored and retrieved, but always
`
`explains that mileage is calculated. For example, the language Petitioner
`
`cites from Bouve states that the “retrieved information is tabulated . . . and
`
`transmitted along with computed mileage.” Ex. 1004, 6:34–36 (emphasis
`
`added). Petitioner implicitly argues that mileage is part of the travel
`
`information, but points to no disclosure in Bouve sufficient to support that
`
`position.
`
`To further clarify this point, we note that Bouve explains information
`
`of interest to travelers (i.e., the disclosed “travel information”) is information
`
`regarding facilities, landmarks, incidents, and conditions. Ex. 1004, 1:16–
`
`20. Bouve provides paragraphs explaining each type of travel information
`
`defines. Id. at 3:8–52. Each paragraph provides details on one type of travel
`
`information, and also includes a sentence explaining that the travel
`
`information is presented with the mileage information, indicating that the
`
`mileage information is not part of the travel information. Id. For example,
`
`Bouve states “Condition information is presented to the user with mileage
`
`and/or travel time indicators which identify the location of the Condition
`
`4
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`
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`IPR2015-01532
`Patent 8,652,009 B2
`
`along or in the vicinity of the travel route.” Id. at 3:47–50. Bouve then
`
`clearly explains the travel information (not the mileage information) may be
`
`tabulated and stored in its storage device. Id. at 4:14–17 (stating that “[t]he
`
`retrieved travel route(s) and Facility, Landmark, Incident, and Condition
`
`information are tabulated by processor 11 and may be stored in storage
`
`device 14.”). Two sentences later, Bouve states “[t]he microprocessor 11
`
`calculates mileage and/or travel time indicators which locate the [travel
`
`information] along the retrieved travel route(s).” Id. at 4:20–23.
`
`After discussing Bouve’s disclosure regarding presenting a shortest
`
`route option, Petitioner concludes that Bouve discloses storing “a length of
`
`the route because it discloses that the user can choose to be presented with
`
`the ‘shortest route’ between two points.” Reh’g Req. 7. It is unclear,
`
`however, what inference Petitioner makes to fill the gap from the fact that
`
`Bouve presents one route as the shortest route to Petitioner’s conclusion that
`
`“the stored route data comprises a length of the route.” To the extent
`
`Petitioner is implying that Bouve’s disclosure regarding tabulating and
`
`storing travel information fills the gap, we are not persuaded for the reasons
`
`discussed above. To the extent Petitioner’s argument relies on a different
`
`inference, Petitioner does not cite any argument in the Petition that we could
`
`have misapprehended or overlooked.
`
`Petitioner also argues that we implicitly and improperly construed
`
`“the stored route data comprises a length of the route” as requiring “storage
`
`of the route length in the same databases as where the stored route data
`
`resides.” Reh’g Req. 7. It was not the intent of the Decision to imply such a
`
`requirement. Rather, the Decision found the Petitioner did not present
`
`sufficient evidence to support its position that Bouve discloses the recited
`
`5
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`IPR2015-01532
`Patent 8,652,009 B2
`
`“stored route data comprises a length of the route.” Accordingly, the
`
`Decision found the Petition did not meet the threshold for institution of inter
`
`partes review with respect to that particular challenge. See 35 U.S.C.
`
`§ 314(a); see also 35 U.S.C. § 312(a)(3); 37 C.F.R. § 42.22(a)(2).
`
`Specifically, the Petition pointed to Bouve’s disclosures of “a hard
`
`disk, compact disc (CD), ROM memory or other electronic or magnetic data
`
`storage device” and that “one or more data bases residing on the storage
`
`device have a plurality of travel routes within a geographic region as well as
`
`one or more types of travel information” as meeting the step of storing data
`
`related to routes. Pet. 11. We agree that the recited storing step does not
`
`require that data be stored in a specific location. The Petition, however, did
`
`not demonstrate sufficiently that a proper construction of claim 17 extends to
`
`temporary storage. Our rules require petitions to explain how claims should
`
`be construed and how the construed claims are unpatentable. 37 C.F.R.
`
`§§ 42.104(3)–(4). Petitioner first raised the argument that the claim should
`
`be construed to encompass temporary storage in its Request. Reh’g Req. 8.
`
`Accordingly, we could not have misapprehended or overlooked that
`
`argument in the Petition, because it was not present.
`
`Notably, even if we were to consider Petitioner’s new argument,
`
`Petitioner has not provided sufficient support for its position that temporarily
`
`storing (such as when a computer processes or transmits information) meets
`
`the recited storing limitation. Reading the recited “storing” step to
`
`encompass temporarily storing is inconsistent with the specification of the
`
`’009 patent, and would render the storing step superfluous in the context of
`
`the ’009 patent. See, e.g., Ex. 1001, 28:48–52, 37:30–33, 39:11–14, 41:26–
`
`27, 41:34–38, 41:66–42:3, 51: 32–36, 69:17–26 (discussing storing data in
`
`6
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`memory and distinguishing between storing and either displaying or
`
`analyzing).
`
`Accordingly, we are not persuaded that we misapprehended or
`
`overlooked any matters addressed in the Petition, and we decline to modify
`
`our Decision with respect to Petitioner’s assertion that claim 17 is
`
`anticipated by Bouve.
`
`B. Anticipation of Claim 17 by Kim
`
`The Petition argued that Kim’s “total altitude distance” discloses the
`
`recited limitation that “the stored route data comprises a length of the route.”
`
`Pet. 34–35. We were not persuaded by Petitioner’s argument because we
`
`found Petitioner did not demonstrate that Kim stored a length of the route.
`
`Dec. 16. Specifically, we found Kim’s “total altitude distance” did not meet
`
`the recited “length of a route.”
`
`In its Request, Petitioner argues that Petitioner was not required to
`
`provide an express construction of “a length of the route” and that the
`
`Board’s construction was improperly narrow. Reh’g Req. 8–11. Petitioner’s
`
`arguments appear to be based on mere disagreement with our finding that
`
`the plain meaning of “a length of the route” does not encompass Kim’s total
`
`altitude distance. Pet. 9–10. Nevertheless, because Petitioner casts its
`
`argument as an improper construction, we address the argument herein.
`
`Petitioner argues it just needs to show “that Kim discloses storing data
`
`that falls within the scope of the plain words ‘a length of the route.’” We
`
`agree with Petitioner that the plain meaning of “a length of the route” is the
`
`appropriate construction because, on this record, we find no reason to give
`
`the phrase a special meaning. The Petition, however, did not present
`
`7
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`persuasive argument that the plain meaning of “a length of the route”
`
`encompasses Kim’s total altitude distance.
`
`Instead, Petitioner asserted that Kim discloses storing “altitudes for
`
`predetermined intervals along” routes, and reading data regarding routes and
`
`associated altitudes from memory. Pet. 34–35 (quoting Ex. 1006, 3:10–32).
`
`The Petition pointed to Kim’s disclosure that the system “reads
`
`corresponding fuel consumption data from memory 50 for the particular
`
`altitude differences and . . . [b]ased on the fuel consumption data, controller
`
`60 calculates the fuel consumption the vehicle would require to travel along
`
`each of the paths.” Ex. 1006, 4:30–36; see Pet. 35. The Petition concluded
`
`that Kim’s total altitude distance “is an example of ‘a length of the route’
`
`claimed in claim 17.” Pet. 35. Dr. Burke’s testimony is duplicative of the
`
`argument in the Petition and merely adds that “[o]ne of ordinary skill in the
`
`art would understand the total altitude distance along a path disclosed in
`
`Kim is an example of ‘a length of the route,’” without providing further
`
`explanation. Ex. 1003 ¶ 81.
`
`The Petition failed to cite the portion of Kim that describes reading
`
`altitude information from memory, calculating “altitude difference between
`
`each adjacent pair of” intervals along a particular route, and adding “each
`
`calculated altitude difference between the adjacent pairs of the intervals . . .
`
`to determine the total altitude distance the vehicle must travel if it drives
`
`along that route.” Ex. 1006, 4:12–20. That portion of Kim demonstrates
`
`that the “total altitude distance” is an estimate of the aggregate change in
`
`altitude between segments of a route, which is used to approximate the
`
`expected effect of altitude changes on fuel consumption. Neither the
`
`Petition nor Dr. Burke’s testimony provides any explanation as to why an
`
`8
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`
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`IPR2015-01532
`Patent 8,652,009 B2
`
`ordinarily skilled artisan would view Kim’s summation of altitude
`
`differences between segments of a route as a “length of the route,” in the
`
`context of the ’009 patent. We find that, barring evidence to the contrary,
`
`the ordinary and customary meaning of “a length of the route,” in light of the
`
`’009 patent, is an actual distance of the route and Kim’s total altitude
`
`distance falls outside the scope of the plain meaning of “a length of the
`
`route.”
`
`Moreover, the Petition and the Request point to Kim’s disclosure of
`
`calculating and using the total altitude distance and, notably, lack any
`
`citation to disclosure in Kim of storing the total altitude distance (altitude
`
`information for “predetermined intervals” is stored). For this additional
`
`reason, Petitioner has not presented evidence sufficient to establish that Kim
`
`discloses “the stored route data comprises a length of the route.”3
`
`III. CONCLUSION
`
`Petitioner has not carried its burden of demonstrating that the Board’s
`
`Decision should be modified. See 37 C.F.R. § 42.71(d).
`
`
`
`Petitioner’s Request for Rehearing is DENIED.
`
`IV. ORDER
`
`
`
`3 Petitioner has not asserted that Kim temporarily stores a length of the
`route. Nevertheless, to the extent Petitioner believes this argument was
`somehow implicitly made, Petitioner has not sufficiently demonstrated that
`temporarily storing discloses the recited limitations for the reasons discussed
`above with respect to Bouve.
`
`9
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`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`
`
`FOR PETITIONER:
`
`Brian Ferguson
`brian.ferguson@weil.com
`
`Anish Desai
`anish.desai@weil.com
`
`
`
`FOR PATENT OWNER:
`
`Mitchell Stockwell
`mstockwell@kilpatricktownsend.com
`
`Wab Kadaba
`wkadaba@kilpatricktownsend.com
`
`
`
`10
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