trials@uspto.gov
`
`571-272-7822
`
`IPR2016-00194, Paper No. 40
`IPR2016-00219, Paper No. 37
`February 28, 2017
`
`
`
`
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`THE TORO COMPANY,
`Petitioner,
`v.
`MTD PRODUCTS INC.,
`Patent Owner.
`- - - - - - -
`Case IPR2016-00194 (Patent No. 8,011,458)
`Case IPR2016-00219 (Patent No. 8,136,613)
`Technology Center 3600
`Oral Hearing Held: Tuesday, February 7, 2017
`
`
`Before: WILLIAM V. SAINDON, RICHARD E. RICE, and
`TIMOTHY J. GOODSON (via video link), Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Tuesday,
`February 7, 2017, at 1:02 p.m., in Hearing Room B, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`571-272-7822
`
`IPR2016-00194, Paper No. 40
`IPR2016-00219, Paper No. 37
`February 28, 2017
`
`
`
`
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`THE TORO COMPANY,
`Petitioner,
`v.
`MTD PRODUCTS INC.,
`Patent Owner.
`- - - - - - -
`Case IPR2016-00194 (Patent No. 8,011,458)
`Case IPR2016-00219 (Patent No. 8,136,613)
`Technology Center 3600
`Oral Hearing Held: Tuesday, February 7, 2017
`
`
`Before: WILLIAM V. SAINDON, RICHARD E. RICE, and
`TIMOTHY J. GOODSON (via video link), Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Tuesday,
`February 7, 2017, at 1:02 p.m., in Hearing Room B, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`
`
`
`
`
`
`
`
`CYRUS A. MORTON, ESQ.
`DAVID A. PRANGE, ESQ.
`WILLIAM E. MANSKE, ESQ.
`Robins Kaplan LLP
`800 LaSalle Avenue
`Suite 2800
`Minneapolis, Minnesota 55402
`612-349-8500
`
`
`
`
`
`
`
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`
`
`
`
`
`
`
`
`JOHN S. CIPOLLA, ESQ.
`MARK W. McDOUGALL, ESQ.
`TRACY SCOTT JOHNSON, ESQ.
`Calfee, Halter & Griswold LLP
`The Calfee Building
`1405 East Sixth Street
`Cleveland, Ohio 44114-1607
`216-622-8200
`
`2
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`P R O C E E D I N G S
`
`(1:02 p.m.)
`JUDGE SAINDON: We are here for an oral
`argument for IPR2016-00194 and 219, involving The Toro
`Company and MTD Products, Inc.
`I'm Judge Saindon. With me here are Judges Rice
`and Goodson. Judge Goodson is appearing remotely, as you
`can see. He can only hear you if you are speaking into that
`microphone at the podium so, please, whoever is up there,
`please speak into the microphone. And as well he can't see
`what is on the screen, so please refer to whatever you are
`talking about both for the clarity of the record and so that
`Judge Goodson can follow.
`All right. We have provided 90 minutes per side
`and we're going to do IPR2016-00194 first. We will hear
`argument from both sides and then move on to the next one.
`The hearing record will cover all cases at the same time so
`there doesn't need to be overlap, but we will break it up just
`for sake of the issues.
`I would like to first do appearances. Let's start
`with Patent Owner.
`MR. CIPOLLA: John Cipolla --
`
`
`
`3
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`JUDGE SAINDON: Please go up to the podium,
`
`please.
`
`MR. CIPOLLA: John Cipolla from Calfee, Halter
`& Griswold arguing the 194 IPR.
`JUDGE SAINDON: Petitioner?
`MR. MORTON: Yes, Your Honor. Cy Morton of
`Robins Kaplan. I will also be arguing the 194. Will Manske
`and David Prange are with me also from my law firm.
`JUDGE SAINDON: All right. Before we get
`started I wanted to read off into the record the e- mail that I
`sent to the two of you regarding the objections on the slides.
`The parties' objections to the demonstratives in
`IPR2016-00194 and 00298 are noted. All objections are
`overruled and the parties may present the material on the
`demonstratives during oral argument. This ruling is only
`directed to whether the material may be presented at oral
`argument and is not a ruling that any content discussed or cited
`therein is proper for consideration when making our final
`written decision.
`The demonstratives submitted by the parties are
`visual aides and neither argument nor evidence. The Panel will
`read this e-mail into the record during the oral argument to
`
`
`
`4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`provide a written record of our ruling.
`All right. With that we may begin. Petitioner,
`would you like to set aside some time for rebuttal ahead of
`time? I will keep time on my end. The lights right there are
`not operational so I will just provide you reminders.
`MR. MORTON: Yes, Your Honor. I'm going to
`shoot for about 40 minutes and 10 for my rebuttal.
`JUDGE SAINDON: Okay.
`MR. MORTON: I do have copies of our slides. If
`that's helpful to Your Honors I can hand them up. If you don't
`need them, that's fine.
`Okay. I'm ready to begin.
`JUDGE SAINDON: Yes, please.
`MR. MORTON: May it please the Board. My
`name is Cy Morton. I represent Petitioner Toro. The '458
`patent we are here to discuss today is directed to vehicles that
`are propelled and steered using two rear hydrostatic drives.
`This is known as differential steering and has been around for
`many decades.
`In some of these vehicles, historically, if you were
`going forward and turning to the right, and then you shifted
`into reverse with the same steering input, the vehicle would
`
`
`
`5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`actually turn out to the left which was, of course, undesirable.
`The '458 patent sets forth that it is going to address
`that problem and says right up front: The present invention
`includes a ZTR vehicle that provides for proper steering of the
`ZTR vehicle in the forward and reverse directions. And then
`another feature is to do that with a steering wheel.
`When we get to the claims we're going to be talking
`about today, looking at claim 1, what happened in the file
`history was this same concept of proper turning was argued to
`obtain this patent. The inventor put in a declaration saying,
`again, we want to configure this to turn properly in reverse.
`And this whole last stanza of the mechanical
`control assembly was added for that purpose to show basically,
`if you are going right, the left wheel should be going faster
`than the right wheel whether you are going forward or reverse
`so you get proper steering. And that's what was argued to
`obtain allowance.
`And here we, also, the claim 9 is further limited to
`actually a zero turn radius turn. Now, it is undisputed in this
`IPR that the two prior art references we've relied upon, Barnes
`and Richard, disclose that functionality. They address the
`exact same problem that was supposedly the invention of the
`
`
`
`6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`'458 patent. That's undisputed.
`And that's I think essentially why the Board
`instituted on all grounds originally. And just to review what
`we have, we have all of the claims anticipated by Barnes.
`Alternatively, 1 through 16 obvious in view of Barnes. And
`then we have just the independent claims anticipated by
`Richard and then the independent claims obvious in view of
`Richard. And finally, for the dependent claims, a combination
`of Richard and Barnes that accounts for adding basically the
`steering wheel to Richard. Those are our five grounds that
`were instituted.
`Now, through the process of this trial -- this is just
`a snippet from our brief -- but there are really three issues that
`have surfaced. One is the mechanical control assembly and
`whether or not the prior art has that. Two is whether the speed
`and steering input members are shown being coupled to the
`frame. And three is whether the Barnes and Richard disclose
`axles.
`
`Now, the main issue by far is the question of the
`mechanical control assembly. And there are three scenarios
`that I will need to be covering today. One is if mechanical
`control assembly is not in means- plus-function format, then
`
`
`
`7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`there is no dispute, as the Board found in institution, the prior
`art has the mechanical control assembly.
`Second, if it is a means-plus-function format, and it
`is the corresponding structure we identify, again, there is
`basically no dispute prior art has the corresponding structure.
`And it is only if we get down to the case where it is
`means-plus-function, which we disagree with, and includes all
`of the structure that they have identified, then there is a
`dispute between whether or not the prior art structures are
`equivalent structures to corresponding structure in the '458
`patent.
`
`So that's the big issue. I do plan to spend a fair
`amount of time on claim construction. And we will move to
`that now.
`
`So the status at institution preliminarily was the
`Board noting that Patent Owner arguing that, although the
`claim term was not construed as means- plus-function during
`prosecution, now it should be in light of the Williamson
`decision. And at institution the Board found we're not going to
`say it is a means- plus-function format for purposes of
`institution.
`Now, to address Williamson, an important legal
`
`
`
`8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`thing to note is that Williamson is clear that, you know, here
`we have no word "means," so there is no presumption, and the
`burden is on the challenger, in this case MTD, to rebut the
`presumption that this is not a 112,6 or means- plus-function.
`JUDGE SAINDON: Counsel, can we go back to
`
`that slide?
`
`MR. MORTON: Yep.
`JUDGE SAINDON: Slide, I think this is 10. In the
`context of the Williamson case, who was the challenger? What
`was the procedural layout of that case?
`MR. MORTON: I'm not sure what you mean.
`JUDGE SAINDON: Well, it says will apply if the
`challenger demonstrates the claim term recites. In the context
`of that decision, was the challenger the person challenging
`whether or not the patent was valid or was it the person
`challenging whether or not the construction was correct? Who
`is the challenger?
`MR. MORTON: I think the -- well, I think it was
`the party saying the patent was invalid. I would want to
`double-check that for you. I think the legal point is still -- I
`mean, claim construction generally is decided by the Court or
`the Board.
`
`
`
`9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`You have this situation where the presumption
`arises where they put a burden on whoever is challenging that.
`We're fine with the presumption that it is not
`means-plus-function. They are the ones challenging that.
`JUDGE SAINDON: So it is challenging the
`presumption?
`MR. MORTON: Right.
`JUDGE SAINDON: Okay.
`MR. MORTON: Right.
`JUDGE RICE: I have a question also at the
`threshold here. How does BRI affect this? If it is a
`means-plus-function term, it is going to be a narrower
`construction. Perhaps that's not how the Congress intended it,
`but that's I think the truth. If it is a purely functional term,
`then it is going to be broader.
`Wouldn't BRI favor construing it then as a
`non-MPF term?
`MR. MORTON: Yes, I think it would. I don't
`know if I have seen a case that directly set that forth, but it
`certainly makes logical sense that you should have a broader
`construction in this context under BRI, which would be simply
`that it is a mechanical control assembly as claimed, not
`
`
`
`10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`attempting to add in all of these elements out of the
`specification --
`JUDGE RICE: Is that a --
`MR. MORTON: -- that MTD wants to.
`JUDGE RICE: I'm sorry, I didn't mean to cut you.
`Is that in Petitioner's papers anywhere?
`MR. MORTON: That we argued -- we certainly
`argue that the BRI applies. We didn't argue for a construction
`of this initially. They come in, you know, later and said, oh,
`this should be a means- plus-function term. Now on reply we
`have certainly refuted that.
`JUDGE RICE: But that specific issue about BRI as
`potentially bearing on whether we have got an MPF term or
`not, that has not been briefed, is that correct?
`MR. MORTON: I don't think we have argued it
`that way. It is a purely legal question for the Board to decide.
`JUDGE RICE: Sure. Thank you.
`MR. MORTON: The other thing I wanted to note
`on the law is simply that it doesn't have to be a precise
`physical structure as long as it evokes, you know, some variety
`of structures, is the case law under Personalized Media. So
`with that I want to look directly at the claim language itself.
`
`
`
`11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`So what we have is a mechanical control assembly
`coupled to the left and right drive units that is configured to
`actuate the left and right drive units based on a steering input
`received from the steering device and a speed input received
`from the speed control member.
`Then we have mechanical control assembly again,
`and we have that whole last stanza, which again just says the
`left wheel goes faster than the right, if you are turning to the
`right, and going forward or backward.
`And what I would suggest here is for starters you
`look at the claim language and all of this claim language
`provides further structural limitations on the mechanical
`control assembly. And I went through this with their expert
`and got admissions and confirmed that and went through this
`line of questioning:
`So if we look at the mechanical control assembly,
`first we know structurally it has to be coupled to the left and
`right drive units?
`That's correct.
`And we know structurally it has to be configured to
`actuate the left and right drive units based on two inputs?
`That's correct.
`
`
`
`12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`And further we know that that whole last stanza is
`a further structural limitation?
`And he says, well, the wording was "being
`configured such that" but, he says, I think generally I agree
`with you.
`
`So that whole last limitation further structurally
`limits the mechanical control assembly. Then if we move to
`the specification to further understand this, the specification is
`replete with the same kind of descriptions. They call it either,
`for figure 3, a mechanical ZTR control linkage or for figure 6 a
`ZTR control assembly.
`So if you put them together you have got a
`mechanical control assembly. That is what is being talked
`about throughout the spec. It is very clear the type of structure
`that a mechanical control assembly is meant to convey.
`And here are the figures on that. A top view of the
`mechanical control assembly in figure 3, and this side view in
`figure 6 that shows this rod going all of the way back to the
`drive units over on the right of figure 6A.
`JUDGE SAINDON: Counsel, in that list on slide
`16, where the spec was talking about all of the different figures
`and what was in them, it talks about ZTR control assembly,
`
`
`
`13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`ZTR control linkage.
`When we look at these figures, is this all the same
`embodiment, just different views of it, or are these different
`types of control linkages?
`MR. MORTON: I think it seems to be all of the
`same embodiment?
`JUDGE SAINDON: Okay.
`MR. MORTON: Like, again, this being, figure 3
`being a top view and then this figure 6 is just showing this part
`of figure 3.
`JUDGE SAINDON: So it is two different words
`but it is the same thing?
`MR. MORTON: Right.
`JUDGE SAINDON: The numbers are the same?
`MR. MORTON: Right.
`JUDGE SAINDON: Okay.
`MR. MORTON: Right. And the spec -- I don't
`need to read all this but it uses the same language. They talk
`about the same things throughout the specification.
`Now, what MTD and their expert have tried to do is
`take the position that mechanical control assembly is a nonce
`word because there is no express definition of it in the
`
`
`
`14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`specification.
`And I have the colloquy with the expert here taking
`that position, saying he doesn't see something called a
`mechanical control assembly. And I ask him about the control
`linkage and mechanical ZTR control. And he says: But they
`are not called mechanical control assemblies. That's his whole
`position. He can't figure out what they are.
`He finally admits that they may certainly help us
`understand what the mechanical control assembly is.
`Components are shared, but I haven't done the analysis to see
`if they are interchangeable. So that is the game, if you will,
`here, is saying that there is not an express definition.
`Well, in the Patent Owner's Response they actually
`include a sentence that says: A mechanical control assembly,
`referred to in the specification as ZTR control assembly, is
`generally shown and described in the specification.
`So we all know what it is. It is very clear it is
`structural. And the spec gives you further guidance on what
`type of mechanical linkages it includes.
`Finally we go to the file history, and here we have
`this last stanza, again, that is being discussed. And it is very
`clear the Examiner rejected saying, no, that whole last stanza
`
`
`
`15
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`is just the intended use. It doesn't narrow or, you know,
`further narrow the claim.
`The Patent Owner jumped up and down and said no,
`no, no, this is the claimed configuration of the mechanical
`control assembly, how it is configured. The claim
`configuration is, indeed, structural. And if you look at that
`part of the file history they go on to cite all the case law on
`that and argue vehemently that it is, indeed, structural. So,
`again, not a nonce word.
`And I would submit when you have told the world
`in the file history that this is a structural imitation and all this
`adds structure, and you've done that to obtain allowance, given
`the public notice function of patents you simply cannot then in
`later litigation say: Oh, well, now it is not structural because I
`want means-plus-function so I can narrow the claims to get
`over the prior art.
`JUDGE GOODSON: Counsel, can you respond to
`the case that they cited in the Patent Owner Response on pages
`21 and 22, which is Mas- Hamilton, a Federal Circuit case from
`1998?
`
`If you don't remember that, the specific question I
`have is you mentioned earlier that we know from the claim
`
`
`
`16
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`language that the mechanical control assembly is coupled to
`the left and right drive units. And I think the Patent Owner's
`reliance on Mas-Hamilton is that that was similarly a term that
`the claim itself said how it was connected to another structure
`similar to what is in your claim here. So can you comment on
`that?
`
`MR. MORTON: Yes, Your Honor. So in
`Mas-Hamilton the claim language was "a lever moving element
`for moving the lever." Lever moving element for moving the
`lever. And that is first written in clear means-plus-function
`format. You have a thing for doing something.
`And as they describe there, it takes its name
`straight from the function it performs. The function is for
`moving a lever. So they call it a lever moving element. And it
`provides no limitation on that structure whatsoever. And none
`of that is true for a mechanical control assembly.
`I haven't gotten through all of the stuff about it yet,
`but mechanical control assembly first has to be mechanical.
`That's clear. Not electrical, whatever. It has to control
`something, in this case the drive units, must control the drive
`units. And it is an assembly, which is a collection of parts or
`in the context of this patent mechanical linkages. So we know
`
`
`
`17
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`what it is.
`And then from there, there is nothing else in that
`Mas-Hamilton case in the claim that further provides any
`limitation on the lever moving element. Nothing else is said to
`further define what that may be, which is not the case here.
`Here you have, not only do you have that it is
`connected to the drive units. You have that it actuates the
`drive units. And then you have that whole last stanza to say
`that it operates, which is structural in the file history, to create
`proper steering in forward and reverse.
`So a very different situation. All of these cases
`are, you know, fact-specific and case-by-case, but our situation
`is very different from that Mas- Hamilton case.
`JUDGE SAINDON: Counsel, I would like to ask on
`that a little more. So you said that the mechanical control
`assembly is coupled to other items in the claim. I'm looking at
`claim 1 right now, for example. Coupled to the left and right
`drive units. There might have been something else in there.
`And there is a lot of functional language that implies what it
`does.
`
`That, I mean, given the context of it, it is going to
`be coupled to the drive unit somehow anyway. So does that
`
`
`
`18
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`really tell us anything? Does it really give us any structure?
`MR. MORTON: I mean, I would look at the whole
`thing put together. I mean, as I said a minute ago, not only is
`it coupled, it is coupled in a way that it can actuate the drive
`units. So a person of ordinary skill in the art understands what
`the drive units are and how you would actuate them and so that
`does provide a further narrowing of the structure.
`JUDGE SAINDON: Do the functions, in the claim,
`do they restrict the way, if you were to take a mechanical
`control assembly, take it off of the vehicle, set it on a
`workbench, what about the functional language tells us what
`that looks like?
`MR. MORTON: So you are taking it out of the
`system is your point?
`JUDGE SAINDON: Right. So function implies
`structure in a way. It has got to be capable of making it so that
`the wheel spins faster in one direction when you're going
`forward.
`
`MR. MORTON: Sure.
`JUDGE SAINDON: So that implies something
`about it. My question is what does it imply structurally?
`MR. MORTON: Sure. Again, you certainly know
`
`
`
`19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`that it is mechanical. You certainly know that it has to control
`the drive unit. So it's going to have some kind of a, you know,
`mechanical rod or what have you that is going to be in
`connection with the drive units, that it can push those, and it is
`going to have to receive two inputs. It has to receive the speed
`input and the steering input.
`And it is going to have to combine those two inputs
`to drive the two rear drive wheels in the way of that last claim
`element, which means it can't just -- you can't just, you know,
`change the speed input and go from adding speed to subtracting
`speed. You're going to have to make it so that you are
`controlling the drive unit so that the left wheel goes from, in a
`right turn, goes from full speed ahead to full speed reverse, if
`all you do is change the speed input, which is very different
`than just translating those inputs directly to those rear drive
`units.
`
`JUDGE SAINDON: Okay. So I'm hearing all of
`the different functions. And I feel like I could picture it in my
`mind the -- in the 219 case, the '613 patent, is that -- if this
`were just a functional claim, would what's in the 219 patent be
`a mechanical control assembly and does that affect our analysis
`any?
`
`
`
`20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`MR. MORTON: What's in the 219 patent?
`JUDGE SAINDON: That's the one with the
`
`circular --
`
`MR. MORTON: I certainly haven't done the
`analysis of whether it has the other claimed, you know,
`features of the mechanical control assembly as far as what it
`can connect to and what it can do. I don't think that it
`probably -- well, I shouldn't say. I don't know.
`So just to wrap that up, I mean, I think based on
`the intrinsic record, especially the claims, spec and file
`history, it is clear that it is meant to be a structural term. MTD
`and its expert, of course, barely even talk about that. The
`expert's analysis is one paragraph where he says I don't find
`definitions.
`And they want to go just to the extrinsic record.
`And I think I have pretty much already made these points that,
`you know, no, there is not a definition somewhere of
`mechanical control assembly that is exactly like the patent, but
`those words do have meanings and when you put them together
`as he did it does evoke a set of structures that is mechanical
`control, something, and is, in his words, a collection of parts
`for directing or regulating a process, in this case controlling
`
`
`
`21
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`the drive units.
`And they also look at other -- they look at other
`patents. I don't think we need to belabor that. I mean, none of
`these has the intrinsic record that we are dealing with, the rest
`of the claim language, the spec and the just clear file history
`admissions.
`So with that I think it is very clear, again, you can't
`say that this is structural and then come in in litigation later
`and say, well, now it is not structural because I want to read in
`more elements to get over the prior art. If they really wanted
`that, they could have made a motion to amend and, of course,
`they did not.
`So I have to address then the situation where you
`disagree with me and it is a mean- plus- function claim element.
`What should we do with it? And we all know you can't import
`limitations that are unnecessary to perform the claimed
`functions. And that's basically all we need for our analysis.
`Their position -- well, initially they said it was
`most of the figures and four columns of text, but they have
`narrowed it down to these elements: Rod member, speed
`members, steering disk, cables, biasing members, steering
`input members, input shafts and pintle links. And the ones we
`
`
`
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`need to focus on here really are just the steering disks and
`tension cables that they want to read into the mechanical
`control assembly.
`If you look at the same kind of figures again, you
`have a part of figure 6 I think here in red, and that is what we
`think is the mechanical control assembly. They want to add
`the steering disk 72 and tension cable 77 and 78. So that's
`what the issue is.
`Now, if you look at the spec when you are doing
`this, figure 5 where that appears is a perspective view of the
`steering wheel and steering mechanism. That's exactly what it
`is, steering wheel and steering mechanism.
`Figure 6, which is these figures, is the ZTR control
`assembly.
`So just linguistically, at least what it says in the
`patent, it is very clear figure 5 is not the ZTR control assembly
`and figure 6 is, so including things in figure 5 is incorrect.
`So our structure is basically the same things only
`removing the steering disk and steering cables. And just to put
`a little finer point on that -- I will go back in my outline a
`bit -- but if we talk about the function, the alleged function,
`the function according to MTD, and we haven't disputed it, is
`
`
`
`23
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`to actuate the left and right drive units based on a steering
`input received from the steering device. That's the claim
`language. Actuate drive units based on a steering input
`received.
`
`It doesn't say the function is to transmit the
`steering input from the steering device to the mechanical
`control assembly. It says the mechanical control assembly
`actuates the drive units based on the input. So including the
`input that is received under the claim language is not -- that's
`not part of the function.
`JUDGE SAINDON: Counsel, so is the, I think it is
`item 38, the rod, rod member I think is what it's called, if we
`were to accept your position that the parts that are only dealing
`with steering are not part of the MCA, how do we analyze the
`rod? Is that only receiving speed input or only translating
`speed [input] or how does it tie into the control assembly?
`MR. MORTON: Yes. So there has been some
`discussion about the rod so I have gone back here to show
`figure 3. And the rod we have here is -- I'm tracing along, and
`it's rod 38 -- so it runs through the mechanical control
`assembly and out to here is your speed input out here.
`And so we could have just included what is in
`
`
`
`24
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`figure 6, I suppose, in the mechanical control assembly, but it
`seems, as you look at this figure, that, well, the rod sort of
`connects and gives structure to the two side-by-side things that
`drive the drive units, and it is attached to them so when the rod
`rotates the speed cams, or whatever they are called, the speed
`input members, can rotate together for forward and reverse
`direction.
`
`And so this, I mean, I would say this part of the rod
`that is really involved here, you know, it doesn't have to be
`part of the mechanical control assembly because it is not really
`labeled as such, but it is fine with us if it is. Here you just --
`you have the input is sort of a direct line input to that. You
`press on the pedal and it turns the rod.
`So your input is very direct in that respect. But,
`you know, you have that input from the speed control or speed
`pedal. That is not part of the mechanical control assembly --
`I'm circling that -- or that end of the rod. But the part that is
`part of these linkages that translate the speed input and the
`steering input into drive signals probably is.
`JUDGE SAINDON: Okay.
`MR. MORTON: And so that's what we have for our
`claim construction. So from there I will move into the
`
`
`
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`
`
`Case IPR2016-00194 (Patent 8,011,458)
`Case IPR2016-00219 (Patent 8,136,613)
`
`
`
`grounds.
`
`JUDGE SAINDON: Before we jump out of claim
`construction, the means- plus-function, and maybe you're going
`to get to this in your application, the -- yeah, in fact, I think it
`will be more appropriate to talk about it.
`But one of the issues I'm interested in is how to
`take a means-plus- function, the function/way/result
`equivalence, and to apply that to Barnes and Richard here as
`far as how close it has to be, what function means, what way
`means, what result means, because in certain readings they all
`deal with the same word three times but they obviously mean
`three different things. So what are those three things and how
`do we apply th
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
