UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`TOYOTA MOTOR CORPORATION,
`Petitioner,
`v.
`SIGNAL IP, INC.,
`Patent Owner.
`____________
`Case IPR2016-01382
`Patent 5,732,375
`____________
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`
`
`
`
`
`

`
`TABLE OF CONTENTS
`
`TABLE OF CONTENTS
`
`5. Overview of Tokuyama ‘166. ................................................................... 10
`5. Overview of Tokuyama ‘166. ................................................................. .. 10
`
`6. Overview of Mazur. .................................................................................. 11
`
`6. Overview of Mazur. ................................................................................ ..11
`
`7. Argument. ................................................................................................. 15
`7. Argument. ............................................................................................... .. 15
`
`A. The Board Should Exercise Its Discretion and Deny Institution of Trial.
`A. The Board Should Exercise Its Discretion and Deny Institution of Trial.
` ................................................................................................................... 16
`................................................................................................................. .. 16
`
`B. Petitioner Has Failed to Demonstrate that Claim 11 is Obvious in View
`
`B. Petitioner Has Failed to Demonstrate that Claim 11 is Obvious in View
`of Schousek, Tokuyama, and Tokuyama ’166. ......................................... 19
`of Schousek, Tokuyama, and Tokuyama ’166. ....................................... .. 19
`
`C. Petitioner Has Failed to Demonstrate that Claim 11 is Obvious in View
`
`C. Petitioner Has Failed to Demonstrate that Claim 11 is Obvious in View
`of Tokuyama, Mazur, and Tokuyama ’166. .............................................. 30
`of Tokuyama, Mazur, and Tokuyama ’166. ............................................ ..30
`
`8. Conclusion. ............................................................................................... 32
`
`8. Conclusion. ............................................................................................. ..32
`
`
`
`
`
`
`
`ii
`
`1. Introduction. ................................................................................................ 1
`
`1. Introduction. .............................................................................................. .. 1
`
`2. Overview of the ‘375 Patent. ...................................................................... 1
`
`2. Overview of the ‘375 Patent. .................................................................... ..1
`
`3. Overview of Schousek. ............................................................................... 6
`
`3. Overview of Schousek. ............................................................................. ..6
`
`4. Overview of Tokuyama. ............................................................................. 9
`4. Overview of Tokuyama. ........................................................................... ..9
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`TABLE OF AUTHORITIES
`
`CASES
`Butamax Advanced Biofuels LLC, v. Gevo, Inc.,
`Case IPR2014-00581 (PTAB Oct. 14, 2014) ............................................ 19
`
`
`CFMT, Inc. v. Yieldup Int’l. Corp.,
`349 F.3d 1333 (Fed. Cir. 2003) ................................................................. 30
`
`
`Conopco, Inc. v. Proctor & Gamble Co.,
`Case IPR2014-00506 (PTAB Dec. 10, 2014) ........................................... 16
`
`
`Conopco, Inc. v. Proctor & Gamble Co.,
`Case IPR2014-00628 (PTAB October 20, 2014) ...................................... 17
`
`
`Corning Incorporated v. DSM IP Assets B.V.,
`Case IPR2013-00045 (PTAB May 9, 2014) .............................................. 23
`
`
`In re Wilson, 424 F.2d 1382 (CCPA 1970) .................................................. 30
`
`Samsung Elec. Co. v. Rembrandt Wireless Techs., LP,
`Case IPR2015-00114 (PTAB Jan. 28, 2015) ............................................ 19
`
`
`Toyota Motor Corp. v. Cellport Sys., Inc.,
`Case IPR2015-01423 (PTAB Oct. 28, 2015) ...................................... 16, 17
`
`
`
`STATUTES
`35 U.S.C. § 314(a) .................................................................................. 15, 16
`
`
`REGULATIONS
`37 C.F.R. § 42.108(a).................................................................................... 16
`
`37 C.F.R. § 42.108(c)................................................................................ 1, 15
`
`37 C.F.R. § 42.65(a)...................................................................................... 23
`
`
`
`
`iii
`
`

`
`
`
`
`
`Exhibit No.
`
`2001
`
`
`
`
`
`
`
`2002
`
`
`2003
`
`
`
`
`
`EXHIBIT LIST
`
`Description
`
`Signal IP, Inc. v. Fiat USA, Inc. et al., 2-14-cv-
`13864, OPINION AND ORDER CONSTRUING
`DISPUTED CLAIM TERMS, Slip Op. (Sep. 20,
`2016 MIED)
`
`Transcript of deposition of Scott Andrews in
`IPR2016-00292.
`
`Toyota’s Petition for Inter Partes Review in
`IPR2016-00291.
`
`iv
`
`

`
`1. Introduction.
`
`Petitioner challenges the patentability of claim 11 of U.S. Pat.
`
`5,732,375 (the “’375 patent”). For at least the reasons explained below, the
`
`Patent Trial and Appeal Board (“PTAB” or “Board”) should not institute an
`
`inter partes review because Petitioner has not met its burden to show a
`
`reasonable likelihood that claim 11 is unpatentable. 37 C.F.R. § 42.108(c)
`
`(“Inter partes review shall not be instituted for a ground of unpatentability
`
`unless the Board decides that the petition supporting the ground would
`
`demonstrate that there is a reasonable likelihood that at least one of the
`
`claims challenged in the petition is unpatentable.”)
`
`
`
`2. Overview of the ‘375 Patent.
`The ’375 patent discloses a method of controlling airbag deployment
`
`using an array of pressure sensors on a vehicle passenger seat. Ex. 1001 at
`
`Abst.1 The passenger seat of a vehicle may be occupied or unoccupied, and,
`
`if occupied, may be occupied by a child in an infant seat. Id. at 1:18-20, 44-
`
`47. In the latter case, if the seat is occupied by a rear-facing infant seat it is
`
`
`
`1 The disclosure of the ’375 patent was also discussed by the Board in
`
`IPR2015-01003, Ex. 1006 at 3 et seq., IPR2016-00291, Ex. 1013 at 2 et seq.,
`
`and IPR2016-00369, Ex. 1014 at 2 et seq.
`
`1
`
`
`
`

`
`desirable to prevent airbag deployment. Id. at 1:28-29. It is also desirable for
`
`the system to be sensitive to possible seating positions of small children. Id.
`
`at 1:49-50.
`
`In a disclosed embodiment, the passenger seat is equipped with 12
`
`pressure sensors, arranged on the seat
`
`according to Figure 2, which is
`
`reproduced at left. Id. at 3:21-23. In this
`
`example, the sensors are turned on one at
`
`a time, a microprocessor samples each
`
`sensor four times, and the sensed values
`
`are averaged, bias-corrected, and filtered
`
`with a time constant. Id. at 3:41-43. This
`
`resulting value is then used to determine
`
`“decision measures,” id. at 3:48-49,
`
`using “fuzzy logic” to rate and handle
`
`marginal cases. Id. at 2:13, 19-20. The
`
`overall operation of the system is shown
`
`in Figure 3 of the ’375 patent, which is
`
`reproduced at right.
`
`
`
`2
`
`

`
`Figure 4 of the ’375 patent, which is reproduced here, shows the
`
`decision measure algorithm flow
`
`chart. Id. at 3:48-51. The sensor
`
`values are summed to obtain the
`
`total force. Id. at 3:49-51. Each
`
`sensor is given a “load rating,”
`
`which is a measure of whether a
`
`given sensor is detecting some
`
`load.2 Id. at 4:1-4. Load ratings are
`
`computed as shown in Figure 6.
`
`Loads below a base value (d) have
`
`a load rating of zero. Loads above the base value have a rating that is the
`
`difference between that of the
`
`base value and the measured
`
`
`
`2 In the related litigation pending in the U.S. District Court for the Eastern
`
`District of Michigan, Judge Goldsmith determined that the patentee provided
`
`a specific definition in the specification and, accordingly, construed the term
`
`“load rating” as “a measure of whether the sensor is detecting some load and
`
`is used for pattern recognition purposes.” Ex. 2001 at 14-19.
`
`
`
`3
`
`

`
`load, up to a limit value. Id. at 4:6-9. The total load rating, which is the sum
`
`of the individual load ratings, is then calculated. Id. at 4:9-11.
`
`Next, the localized areas, shown in Figure 7 (below), are checked for
`
`force concentration. Id. at 4:18-19. The
`
`sensors are divided into overlapping
`
`front, left, right and rear areas, and the
`
`algorithm determines whether all of the
`
`pressure is concentrated in a particular
`
`group. Id. at 4:19-25. If so, a flag is set
`
`for that group. Id. at 4:27-29.
`
`The deployment decision algorithm is shown in Figure 8 of the ’375
`
`patent, which is reproduced here.
`
`Initially, a check is made to determine
`
`whether the rails of an infant seat are
`
`detected, and if so, whether the seat is
`
`facing forward or rearward. Id. at 4:65-
`
`5:1. The decision algorithm then
`
`determines whether to allow or inhibit
`
`airbag deployment accordingly. Id. at
`
`
`
`5:1-11.
`
`4
`
`

`
`If no infant seat rails are detected, the decision algorithm compares
`
`the total force to high (allow) and low (inhibit) thresholds. Deployment is
`
`allowed if the force is above the high threshold, and inhibited if it is below
`
`the low threshold. Id. at 5:12-15.
`
`If the total force is below its low threshold, the total load rating is
`
`compared to high and low thresholds. “Deployment is allowed if the rating is
`
`above the high threshold and inhibited if below the low threshold.” Id. at
`
`5:18-21. Thus, airbag deployment is allowed if the total load rating for the
`
`sensors is above a load rating threshold, even if the total force sensed by the
`
`sensors is less than a threshold force.
`
`Claim 11, the sole claim challenged in the present petition, is
`
`reproduced below.
`
`11. A method of airbag control in a vehicle having an
`array of force sensors on the passenger seat coupled to a
`controller for determining whether to allow airbag
`deployment based on sensed force and force distribution
`comprising the steps of:
`measuring the force sensed by each sensor;
`calculating the total force of the sensor array;
`allowing deployment if the total force is above a total
`threshold force;
`assigning a load rating to each sensor based on its
`measured force, said load ratings being limited to
`
`5
`
`
`
`

`
`maximum value;
`summing the assigned load ratings for all the sensors
`to derive a total load rating; and
`allowing deployment if the total load rating is above a
`predefined total load threshold, whereby deployment is
`allowed if the sensed forces are distributed over the
`passenger seat, even if the total force is less than the total
`threshold force.
`
`Id. at 7:1-20.
`
`
`
`3. Overview of Schousek.
`Schousek, U.S. Pat. 5,474,327, was cited and specifically considered
`
`by the Examiner during the original prosecution of the application that led to
`
`the ’375 patent. Ex. 1005 at 23 et seq. It was also cited and discussed during
`
`Reexamination No. 90/013,386 involving the ’375 patent. See, e.g., Ex. 1010
`
`at 17 et seq. Further, the Schousek patent was recognized by the Board as
`
`being one of the references cited in Toyota’s previous petition in IPR2015-
`
`01003. Ex. 1013 at 9 et seq.
`
`In Schousek, air bag deployment is determined based on an evaluation
`
`of the weight of a seat occupant vis-à-vis certain thresholds. If the total
`
`weight of the seat occupant is less than a minimum weight of an occupied
`
`infant seat, the seat is determined to be empty and air bag deployment is
`
`
`
`6
`
`

`
`inhibited. If the total weight of the seat occupant is greater than a maximum
`
`weight of an occupied infant seat, air bag deployment is not inhibited.
`
`Finally, if the total weight of the seat occupant is determined to be between
`
`the minimum weight of an
`
`occupied infant seat and the
`
`maximum weight of an
`
`occupied infant seat, air bag
`
`deployment depends on factors
`
`such as the legal requirements
`
`of where the vehicle is operated
`
`and/or whether the center of
`
`weight distribution is forward or
`
`aft of a seat reference line. Ex.
`
`1002 at 2:12-46; 4:55 – 5:3;
`
`5:23-50; Ex. 2002 at 31:18-24;
`
`33:3-15. This algorithm is
`
`illustrated in Fig. 5A of Schousek. See steps 68 – 86 of Fig. 5A (reproduced
`
`here); and see Ex. 2002 at 33:20 – 39:7 (explaining process illustrated in Fig.
`
`5A).
`
`
`
`7
`
`

`
`Schousek also describes a fault detection procedure for an air bag
`
`control system. As illustrated
`
`in Fig. 5B (reproduced below),
`
`faults are detected by
`
`comparing the inhibit/no
`
`inhibit decisions reached in
`
`five consecutive loops of the
`
`process illustrated in Fig. 5A.
`
`Ex. 1002 at 5:51 – 6:1; Ex.
`
`2002 at 39:14 – 41:12. If the
`
`inhibit/no inhibit decision is
`
`consistent over five
`
`consecutive loops, it is deemed
`
`correct and that inhibit/no inhibit decision is forwarded to the air bag
`
`deployment module. Ex. 1002 at 5:51-61; Ex. 2002 at 41:13 – 42:15. If,
`
`however, the five decisions are not the same, a previous inhibit/no inhibit
`
`decision is forwarded to the air bag deployment module and a fault
`
`registered. If a large number of consecutive faults are noted, then a fault
`
`condition is reported to the air bag deployment module. Ex. 1002 at 5:61-67;
`
`
`
`8
`
`

`
`Ex. 2002 at 45:15 – 47:9. If this problem persists, a fault indicator is
`
`illuminated. Ex. 1002 at 6:2-6.
`
`
`
`4. Overview of Tokuyama.
`Tokuyama, JP06-022939, describes a “seat load detection apparatus”
`
`intended to distinguish between human and
`
`non-human seat occupants. Ex. 1004 at Abst.3
`
`Using a matrix of “load detection units” (S1 –
`
`S12) that are sampled in sequence, id. at
`
`[0028], electric current values that correspond
`
`to loads acting on the load detection units are
`
`detected. Id. Using the presence (an ON state) or absence (an OFF state) of
`
`such currents, as well as their respective values at each load detection unit, a
`
`microprocessor determines whether a load that is acting on a seat is due to a
`
`person or to something else. Id. at [0029].
`
`3 The disclosure of Tokuyama was discussed in detail by the Board in
`
`
`
`
`IPR2016-00291. Ex. 1013 at 10 et seq.
`
`9
`
`

`
`Figure 7 of Tokuyama shows this “distinguishing operation” in more
`
`detail. Initially, in step (a), if all of the load detections units are OFF, it is
`
`decided that no load is present. Otherwise, if any of the load detection units
`
`is ON, then a series of elimination tests (steps b-
`
`g) are made to determine if the load should be
`
`considered to be due to something other than a
`
`person. Id. at [0031]. If all of the elimination
`
`tests are satisfied, the load is deemed to be due
`
`to a person sitting in the seat. Id. at [0032].
`
`Otherwise, the load will be considered to be due
`
`to something other than a person, unless one or
`
`more of the seat front sensors (S10, S11, S12) is
`
`ON (step (h)), in which case the load will be
`
`considered to be due to a child sitting in the seat. Id. at [0033].
`
`
`
`5. Overview of Tokuyama ‘166.
`Tokuyama ’166, JP05-066166, is cited in Tokuyama as “the present
`
`applicant's patent application H3-254527.” Ex. 1004 at [0002]. It is said to
`
`disclose:
`
`
`
`an apparatus in which multiple load detection units S1 to
`
`10
`
`

`
`S9 are disposed on the inner side of a surface sheet 5 of a
`seat unit 2 of an automobile seat 1 as shown in FIG. 8 [of
`Tokuyama – corresponds to Fig. 2 of Tokuyama ’166],
`which can distinguish, by the output pattern from the
`load detection units S1 to S9, whether a driver or
`passenger is sitting in the
`automobile seat 1 or
`whether only baggage has
`been placed there, as well
`as whether there is
`nothing on the seat 1.
`With this apparatus, by
`distinguishing the output
`pattern from the load detection units S1 to S9 that are
`disposed on the top surface of the seat, it can be
`distinguished whether an adult is sitting or whether
`baggage has been placed.
`
`Id.
`
`
`
`6. Overview of Mazur.
`Mazur, US Pat. 5,454,591, describes a system intended to prevent
`
`deployment of an airbag when a rearward facing child seat is occupying a
`
`
`
`11
`
`

`
`passenger seat in a vehicle. Ex. 1011 at Abst.4 The system makes use of a
`
`weight sensor, and either or both of a distance sensor and a seat belt payout
`
`sensor. Id. at 5:3-13.
`
`
`
`
`
`For example, as shown in Figure 2 of Mazur, each of the three sensors
`
`may provide inputs to a controller, which implements an AND function.
`
`When a signal from a crash sensor is deemed to be indicative of a crash
`
`condition, the controller evaluates the sensor inputs to determine whether the
`
`airbag deployment should be permitted or inhibited. Id. at 4:59 – 5:13.
`
`4 Mazur was cited in Toyota’s previous petition in IPR2016-00291. Ex. 1013
`
`
`
`
`at 15 et seq.
`
`12
`
`

`
`In one circumstance, inputs from the distance sensor and the weight
`
`sensor are evaluated. As
`
`shown in Fig. 3, if the
`
`sensed weight is greater
`
`than a weight threshold
`
`(deemed to be the maximum
`
`weight of an occupied child
`
`seat, id. at 3:44-53), airbag
`
`deployment is always
`
`permitted. On the other
`
`hand, if the sensed weight is
`
`below the weight threshold,
`
`the measured distance to an
`
`object occupying the seat is considered. If that distance is less than a
`
`distance threshold (considered to be the distance to a rearward facing child
`
`seat, id. at 4:1-22), airbag deployment is prevented, otherwise airbag
`
`deployment is permitted. Id. at 5:14-31.
`
`
`
`13
`
`

`
`In a second circumstance, shown in Figure 4 (above), if the sensed
`
`weight is greater than the weight threshold, airbag deployment is always
`
`permitted. On the other hand, if the sensed weight is below the weight
`
`threshold, the amount of seatbelt payout is considered. If the amount of
`
`seatbelt payout is greater than a payout threshold (considered to be the
`
`amount of seatbelt needed to secure a reward facing child seat, id. at 4:23-
`
`45), airbag deployment is
`
`prevented, otherwise airbag
`
`deployment is permitted. Id. at
`
`5:32-58.
`
`A third circumstance
`
`involves use of inputs from all
`
`of the sensors and is illustrated
`
`in Figure 5. As shown, if the
`
`sensed weight is greater than
`
`the weight threshold, airbag
`
`deployment is always
`
`permitted. If, however, the
`
`sensed weight is below the weight threshold, the measured distance to an
`
`object occupying the seat is considered, and if greater than the distance
`
`
`
`14
`
`

`
`threshold, airbag deployment is always permitted. If, however, the sensed
`
`weight is below the weight threshold and the measured distance to an object
`
`occupying the seat is less than the distance threshold, then the amount of
`
`seatbelt payout is considered. If the amount of seatbelt payout is greater than
`
`the payout threshold, airbag deployment is prevented, otherwise airbag
`
`deployment is permitted. Id. at 5:59 – 6:13.
`
`
`
`
`7. Argument.
`An inter partes review may be instituted only if “the information
`
`presented in the petition . . . and any response . . . shows that 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); 37 C.F.R. §
`
`42.108(c). Here, Petitioner has not met this requirement in either of its
`
`proposed grounds of institution. Moreover, Toyota should be denied this
`
`“second bite at the apple” because it has not explained why the arguments
`
`and references now being relied upon could not have been presented earlier.
`
`
`
`
`
`15
`
`

`
`A. The Board Should Exercise Its Discretion and Deny Institution
`of Trial.
`
`As an initial matter, the Board should exercise its discretion and deny
`
`institution of trial as this proceeding represents nothing more than
`
`incremental-petitioning by Toyota, without any explanation as to why the
`
`arguments and references now being relied upon could not have been
`
`presented earlier. Institution of inter partes review is discretionary with the
`
`Board. See 35 U.S.C. § 314(a); 37 C.F.R. § 42.108(a). There is no per se
`
`rule against a petitioner filing a second petition in cases, such as this, where
`
`the Board previously declined to institute a review; however, in reviewing
`
`the propriety of such matters, the Board has considered a variety of factors
`
`in deciding whether to exercise its discretion not to institute review. These
`
`include considerations of whether the same petitioner previously filed a
`
`petition directed to the same claims of the same patent, and whether, at the
`
`time of filing of the first petition, the petitioner knew of the prior art asserted
`
`in the second petition or should have known of it. See Conopco, Inc. v.
`
`Proctor & Gamble Co., Case IPR2014-00506, Paper 25, slip op. at 4 (PTAB
`
`Dec. 10, 2014) (Informative); Toyota Motor Corp. v. Cellport Sys., Inc.,
`
`Case IPR2015-01423, Paper 7, slip op. at 8 (PTAB Oct. 28, 2015). Panels of
`
`the Board have also found it useful to understand whether, at the time of
`
`filing of the second petition, the petitioner already received the patent
`
`
`
`16
`
`

`
`owner’s preliminary response to the first petition or received the Board’s
`
`decision on whether to institute review in the first petition. See Conopco,
`
`Inc. v. Proctor & Gamble Co., Case IPR2014-00628, Paper 21 slip op. at 11
`
`(PTAB October 20, 2014) (discouraging filing of a first petition that holds
`
`back prior art for use in later attacks against the same patent if the first
`
`petition is denied); Toyota Motor Corp., slip op. at 8 (“the opportunity to
`
`read Patent Owner’s Preliminary Response in IPR2015-00634, prior to filing
`
`the Petition here, is unjust.”).
`
`In the present case, consideration of factors such as the above favors
`
`the Board exercising its discretion not to entertain this second petition. For
`
`example, here Toyota withheld from its first petition prior art that, at a
`
`minimum, it should have known about,5 and has used the Board’s decision
`
`in IPR2016-00291 as a roadmap for introducing this prior art and making
`
`new arguments in an attempt to cure specific deficiencies that were
`
`addressed by the Board. See Pet. at 33 et seq. (criticizing the Board’s prior
`
`decision and seeking to address shortcomings of the prior petition described
`
`therein). Allowing Toyota to maintain this subsequent challenge, while
`
`
`
`5 Tokuyama ’166 was specifically cited in Tokuyama (relied upon by Toyota
`
`in its petition in IPR2016-00291) as “the present applicant's patent
`
`application H3-254527.” Ex. 1004 at [0002].
`
`17
`
`
`
`

`
`having had the opportunity to adjust its positions along the way based on the
`
`Board’s earlier decision and the Patent Owner’s previous response, would be
`
`inequitable.
`
`In denying institution of review in IPR2016-00291, the Board
`
`addressed the very same Schousek, Mazur, and Tokuyama references now
`
`cited by Petitioner and determined that Petitioner did not adequately account
`
`for the full extent of the limitations at issue in claim 11. Ex. 1013 at 15
`
`(“Petitioner provides no persuasive explanation or sufficient evidence that
`
`Tokuyama contemplated ‘summing the assigned load ratings,’ as claimed . .
`
`. .”). This second petition is a direct response to that determination, Pet. at 33
`
`et seq., yet Petitioner offers no reason as to why it did not previously offer
`
`the arguments it now presents or cite Tokuyama ‘166 as allegedly teaching
`
`the elements of claim 11 the Board found were not adequately addressed.
`
`This suggests that this is a case of nothing more than undesirable
`
`incremental-petitioning, where a petitioner relies on a Board decision in a
`
`prior proceeding involving the same parties, the same patent, and the same
`
`claim, to mount a second attack against a claim after an unsuccessful first
`
`attack, by fixing deficiencies, noted by the Board, that should not have been
`
`in the first petition.
`
`
`
`“Allowing similar, serial challenges to the same patent, by the same
`
`18
`
`

`
`petitioner, risks harassment of patent owners and frustration of Congress’s
`
`intent in enacting the Leahy-Smith America Invents Act.” Butamax
`
`Advanced Biofuels LLC, v. Gevo, Inc., Case IPR2014-00581, Paper 8, slip
`
`op. at 13 (PTAB Oct. 14, 2014) (citing H.R. Rep. No. 112-98, pt. 1, at 48
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`(2011)). Also, “it is more efficient for the parties and the Board to address a
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`matter once rather than twice.” Samsung Elec. Co. v. Rembrandt Wireless
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`Techs., LP, Case IPR2015-00114, Paper 14, slip op. at 6 (PTAB Jan. 28,
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`2015). The Board’s resources would be more fairly expended on first
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`petitions rather than on a follow-on petition like the one in this case.
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`Petitioner offers no justification for its incremental-petitioning other
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`than its disagreement with the Board’s earlier decision. Indeed, Petitioner as
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`much as admits it is simply seeking to fill an evidentiary gap that resulted in
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`its failure to persuade the Board to institute trial in IPR2016-00291. For all
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`of the reasons discussed above, however, the Board should exercise its
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`discretion not to institute review in this proceeding.
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`
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`B. Petitioner Has Failed to Demonstrate that Claim 11 is Obvious
`in View of Schousek, Tokuyama, and Tokuyama ’166.
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`In alleging obviousness of claim 11 in view of the combined teachings
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`of Schousek, Tokuyama, and Tokuyama ’166, Petitioner admits that
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`Schousek fails to teach the use of load ratings and associated thresholds, Pet.
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`19
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`at 27, but contends that Tokuyama discloses same. Id.; and see id. at 29, 31-
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`33.6 In particular, Petitioner again argues that Tokuyama discloses “summing
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`the assigned load ratings,” id. at 34-40, and, to the extent it does not, further
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`cites Tokuyama ’166. Id. at 40-43. As with its previous petition, however,
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`Petitioner’s argument fails.
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`As discussed above, a load rating, according to the ’375 patent is a
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`measure of whether a given sensor is detecting some load. Ex. 1001 at 4:1-4.
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`Petitioner relies on Tokuyama’s use of load detections unit ON/OFF states to
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`teach load ratings. Pet. at 31-32 (“Tokuyama . . . makes an ON-OFF
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`judgment as to whether a current is flowing in each load detection unit, i.e. a
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`determination whether each sensor is detecting some load or no load.”)
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`(citations omitted). Even assuming for the sake of argument that Petitioner
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`correctly characterizes the teachings of Tokuyama in this regard, it
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`nevertheless remains the case that the combination of Schousek and
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`Tokuyama does not suggest “summing the assigned load ratings for all the
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`sensors to derive a total load rating; and allowing deployment if the total
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`
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`6 This is the same challenge that was presented in IPR2016-00291 and which
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`the Board deemed deficient because, “Contrary to Petitioner’s argument,
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`there is no express disclosure in Tokuyama that it is ‘adding up’ the number
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`of sensors that are ON.” Ex. 1013 at 13.
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`20
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`load rating is above a predefined total load threshold,” as required by claim
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`11.
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`Schousek fails to teach the use of load ratings, Pet. at 27, and therefore
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`cannot disclose summing assigned load ratings for all the sensors. According
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`to Tokuyama, it is the ON/OFF state of individual sensors that determines
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`whether a sensed load is due to a person or something else. Ex. 1004 at
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`[0031]. For example, the state of sensors S1 – S9 may be determinative of
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`the nature of the load. Id. Or, if not, then the state of sensors S2, S5, and S8,
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`or S4, S5, and S6 may be determinative. Id. Or, the value of currents flowing
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`in S1 – S9 may provide the indication. Id. In no event, however, is the sum
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`of the assigned load ratings for all the sensors used to derive a total load
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`rating, nor is it ever used to allow deployment of an airbag (or be
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`determinative of any other decision) if the total load rating is above a
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`predefined total load threshold, as required by claim 11.
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`In IPR2016-00291, Petitioner read Tokoyama as teaching a
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`passenger/no passenger classification based in part on whether four or more
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`of the nine load detection units S1 to S9 are on. Ex. 2003 at 28-29. However,
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`Petitioner failed to account for the fact that S1 – S9 are fewer that the total
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`number of load sensors (S1 – S12), and so the portions of Tokoyama relied
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`upon could not meet claim 11’s condition of summing the assigned load
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`21
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`ratings for all the sensors. Ex. 1013 at 12-14. Petitioner now makes the very
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`same contention, Pet. at 33, but alleges,
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`in December 1995, one of ordinary skill in the art
`reviewing Tokuyama would have understood that
`Tokuyama determines whether any 4 of the 9 seat
`sensors S1 to S9 are ON by converting the analog sensor
`current measurement for each sensor to a digital binary
`value of 1 (ON) or 0 (OFF), and then adding (or
`counting) the binary values of the sensors to determine
`how many are ON. And, even if one of ordinary skill did
`not understand Tokuyama to be adding (or counting) the
`binary values for the sensors, he or she would have
`understood that doing so was a well-known, simple, and
`obvious way of making such a determination.
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`Id. at 34-35 (citations omitted). To the extent this is simply a restatement of
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`the same rationale that Petitioner advanced in the earlier case, Ex. 2003 at
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`28-29 (“by converting each sensor measurement into an ‘ON’ or ‘OFF,’
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`Tokuyama’s apparatus determines whether each of its sensors is detecting
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`some load and ‘assign[s] a load rating to each sensor based on its measured
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`force’ as required by the final limitations of claim 11.”), it offers no new
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`rationale for instituting trial. Further, insofar as the statements concerning
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`the addition (or counting) of sensor values rest on nothing more than Mr.
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`22
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`Andrews’ verbatim repetition of Petitioner’s argument (see Ex. 1009 at ¶
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`70), they are not evidence and are entitled to little or no weight.7
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`
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`Petitioner bases its argument for Tokuyama to be understood as
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`adding (or counting) the binary values for the sensors on the assertion that,
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`“Tokuyama’s processor adds (or counts) each binary value of 1
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`corresponding to an ON sensor, stores the sum of the binary values of 1 (or
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`increments a counter), and then determines whether the stored sum of the
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`binary values (or the value of the counter) is equal to or exceeds 4.” Pet. at
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`36-37. It is telling that Petitioner cites nothing in Tokuyama that supports
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`such a conclusion. Even Mr. Andrews postulates other methodologies that
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`might have been employed. Ex. 1009 at ¶ 73. Mr. Andrews views those
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`other methods as “more complicated” but cannot point to anything in
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`
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`7 The opinions set forth by Mr. Andrews in his declaration concerning the
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`addition (or counting) of sensor values in Tokuyama at are ¶¶ 70-73 of Ex.
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`1009. With the exception of language such as “in my opinion,” Mr.
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`Andrews’ testimony is a near verbatim reproduction of the argument set
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`forth in the Petition at pp. 34-38. As such, the Board should accord it little or
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`no weight. 37 C.F.R. § 42.65(a); Corning Incorporated v. DSM IP Assets
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`B.V., Case IPR2013-00045, Paper 92, slip op. at 14-15 (PTAB May 9,
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`2014).
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`23
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`Tokuyama that repudiates the use of such techniques or, for that matter,
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`definitively states that any sort of summation of all of the sensor values is
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`determined at all.
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`
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`For its part, Tokuyama indicates that the load detection units S1-S12
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`are polled in sequence to determine whether an electric current is flowing
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`and, if so, the value of that current. Ex. 1004 at [0028] (“A power source 25
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`is provided on the output parts from the matrix switch 21, and for each of the
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`load detection units S1 to S12 that are switched to in sequence by the matrix
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`switch 21, it is detected whether an electric current is flowing between the
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`conductors 12 and 13, and the value of the current is detected. This detection
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`output is converted to a digital signal by an A/D converter 22, and
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`processing is done by a microprocessor 23, serving as the distinguishing
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`unit.”). Current flow is indicative of an ON/OFF state of a load detection
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`unit, and “by way of the detected value of the current at each load detection
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`unit, it is distinguished w