UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`AUTOLIV ASP, INC., NIHON PLAST CO., LTD., NEATON AUTO
`PRODUCTS MANUFACTURING INC., TAKATA CORP., TK HOLDINGS,
`INC., TOYODA GOSEI CO., LTD., HYUNDAI MOBIS CO., LTD, MOBIS
`ALABAMA, LLC, AND MOBIS PARTS AMERICA LLC
`Petitioners
`
`v.
`
`AMERICAN VEHICULAR SCIENCES LLC
`Patent Owner
`__________________
`
`Inter Partes Review No.: IPR2016-01790
`Patent No. 9,043,093
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`PETITIONERS’ REPLY BRIEF IN SUPPORT OF PETITION FOR INTER
`PARTES REVIEW OF U.S. PATENT NO. 9,043,093
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`AUTOLIV ASP, INC., NIHON PLAST CO., LTD., NEATON AUTO
`PRODUCTS MANUFACTURING INC., TAKATA CORP., TK HOLDINGS,
`INC., TOYODA GOSEI CO., LTD., HYUNDAI MOBIS CO., LTD, MOBIS
`ALABAMA, LLC, AND MOBIS PARTS AMERICA LLC
`Petitioners
`
`v.
`
`AMERICAN VEHICULAR SCIENCES LLC
`Patent Owner
`__________________
`
`Inter Partes Review No.: IPR2016-01790
`Patent No. 9,043,093
`
`
`PETITIONERS’ REPLY BRIEF IN SUPPORT OF PETITION FOR INTER
`PARTES REVIEW OF U.S. PATENT NO. 9,043,093
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`Petitioners' Reply Brief
`U.S. Patent No. 9,043,093
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`TABLE OF CONTENTS
`
`I.
`II.
`
`V.
`
`
`INTRODUCTION .............................................................................................. 1
`THE ʼ093 PATENT EXPIRATION AND CLAIM
`CONSTRUCTION .............................................................................................. 2
`III. CLAIMS 1-44 OF THE '093 PATENT ARE OBVIOUS ................................. 4
`A. KARLOW AND LAU .......................................................................... 4
`1.
`“a single airbag extending across at least two
`seating positions of a passenger compartment of a
`vehicle, the single airbag arranged to deploy into
`the passenger compartment along a lateral side of
`the vehicle and adjacent each of the at least two
`seating positions” ........................................................................ 4
`a single, laterally extending airbag that "deploys
`downward" .................................................................................. 7
`LEISING AND LAU ............................................................................ 8
`1.
`"a single airbag extending across a lateral side of
`the vehicle" across to passenger compartments .......................... 8
`a single side airbag extending laterally across two
`passengers rows and any intervening pillar
`between the two rows ................................................................ 11
`"plurality of compartments in flow
`communication" ........................................................................ 22
`C. OBJECTIVE INDICIA OF NONOBVIOUSNESS ............................ 23
`IV. DECLARATION OF PATENT OWNER'S EXPERT SHOULD
`BE GIVEN LITTLE WEIGHT ........................................................................ 25
`CONCLUSION ................................................................................................. 31
`
`
`2.
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`B.
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`2.
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`3.
`
`ii
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`Petitioners' Reply Brief
`U.S. Patent No. 9,043,093
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`TABLE OF AUTHORITIES
`
`
`Abbott Labs. v. Novopharm Ltd., 104 F.3d 1305, 1308–09 (Fed. Cir. 1997)
`
`Phillips v. AWH Corp., 415 F.3d 1303, 1312–1315 (Fed. Cir. 2005) (en banc)
`
`In re CSB-Sysem Int’l, 832 F.3d 1335, 1341 (Fed. Cir. 2016)
`
`Unified Patents Inc. v. American Vehicular Sciences, LLC PR2016-00364, paper
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`35 (PTAB may 19, 2017) (Final Written Decision)
`
`
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`KSR International Co. v. Teleflex Inc., 550 U.S. 398, 421 (U.S. 2007)
`
`3
`
`3
`
`3
`
`4
`
`6
`
`Epistar v. Boston University, IPR2013-00298, Paper 18 (PTAB. Nov. 15, 2013)
`
`(Decision Denying Institution)
`
`
`
`
`
`
`
`
`
`21, 22
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`Tokai Corp. v. Easton Enterprises, Inc., 632 F.3d 1358, 1371 ( Fed. Cir. 2011) 22
`
`Qualtrics Labs Inc. v. OpinionLab Inc., IPR2014-00421, Paper 41 (PTAB July 24,
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`2015) (Final Written Decision)
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`
`
`
`
`In re Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011)
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`In re Tiffin, 448 F.2d 791, 792 (CCPA 1971)
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`
`
`
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`
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`In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998)
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`
`
`
`iii
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`24
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`24
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`24
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`24
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`Petitioners' Reply Brief
`U.S. Patent No. 9,043,093
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`Exhibit No.
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`LIST OF EXHIBITS
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`Description
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`Ex[1001] U.S. Patent 9,043,093
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`Ex[1002]
`File History for U.S. Patent 9,043,093
`Ex[1003] Declaration of Stephen W. Rouhana, Ph.D, In Support of Petition
`for Inter Partes Review of U.S. Pat. No. 9,043,093
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`Ex[1004] U.S. Patent 5,772,238
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`Ex[1005] U.S. Patent 3,897,961[Leising]
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`Ex[1006] U.S. Patent 5,273,309[Lau]
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`Ex[1007] U.S. Patent 5,269,561[Davis et al]
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`Ex[1008] U.S. Patent 5,540,459[Daniel]
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`Ex[1009] U.S. Patent 5,222,761[Kaji]
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`Ex[1010] U.S. Patent 5,524,924[Steffens]
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`Ex[1011] U.S. Patent 4,021,058[Suzuki et al]
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`Ex[1012] U.S. Patent 4,998,751[Paxton et al]
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`Ex[1013] U.S. Patent 3,966,225[Marlow]
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`Ex[1014] U.S. Patent 5,588,672[Karlow]
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`Ex[1015] U.S. Patent 5,366,241[Kithil]
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`Ex[1016] U.S. Patent 3,510,150[Wilfert]
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`iv
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`Petitioners' Reply Brief
`U.S. Patent No. 9,043,093
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`Exhibit No.
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`Description
`
`Ex[1017]
`
`Ex[1018]
`
`Clark, Carl and Blechschmidt, Carl: “Human Transportation
`Fatalities and Protection against Rear and Side Crash Loads by the
`Airstop Restraint”, SAE Technical Paper 650952, 1965.
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`Karlow, James P., Jakovski, J. John, and Seymour, Brian:
`“Development of a New Downsized Airbag System for Use in
`Passenger Vehicles,” SAE Technical Paper 940804, 1984.
`
`Ex[1019]
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`Final Written Decision in IPR 2016-00364, Unified Patents Inc. v.
`American Vehicular Sciences, LLC
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`Ex[1020]
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`Transcript of Deposition of Michael Nranian August 29, 2017
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`v
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`Petitioners' Reply Brief
`U.S. Patent No. 9,043,093
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`I.
`
`INTRODUCTION
`Petitioners provide the following reply to the arguments raised in the Patent
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`Owners Response filed June 22, 201, (Paper 19) regarding patentability of claims
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`1-44 of Patent No. 9,043,093 (the '093 patent) (Ex. 1001). As discussed below,
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`Petitioners respectfully submit that Patent Owner has misconstrued Petitioners'
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`combination of the applied references.
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`Regarding the combination of Karlow US 5,588,672 (Ex. 1014) and Lau US
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`5,273,309 (Ex. 1006), although the Board in the Unified Patents inter partes
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`review (IPR 2016-00364) has held that the claims of the '093 patent are not
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`unpatentable in view of the combination of Karlow and Lau because the petitioner
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`in that inter partes review failed to address how the modified airbag would provide
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`sufficient protection for a front seat occupant, Petitioners in this inter partes review
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`have provided detailed arguments and evidence that the extended shape of
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`Karlow's side curtain airbag, when modified by a person having ordinary skill,
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`would still provide protection for a front seat occupant.
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`Regarding the combination of Leising US 3,897,961 (Ex. 1005) and Lau,
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`Patent Owner has presented numerous arguments that misconstrue or
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`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
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`misapprehend the combination presented by the Petitioners. Petitioners have
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`addressed each of these arguments below.
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`Patent Owner also has presented several articles and studies as allegedly
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`showing objective evidence of nonobviousness. However, Patent Owner has not
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`provided any explanation or evidence that the alleged objective evidence is
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`coextensive with the claimed invention. Thus, the purported objective evidence of
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`nonobviousness is not pertinent to the patentability of the claims at issue.
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`
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`II. THE ʼ093 PATENT EXPIRATION AND CLAIM CONSTRUCTION
`In its Institution Decision, the Board requested the parties to “expressly
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`address the expiration of the ’093 patent, and the claim construction standard to be
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`applied” (Institution Decision, Paper 16 at 7). 35 U.S.C. § 154(a)(2) states that a
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`patent term shall “begin[] on the date on which the patent issues and end[] 20 years
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`from the date on which the application for the patent was filed in the United States
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`or, if the application contains a specific reference to an earlier filed application . . .
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`from the date on which the earliest such application was filed.” The ʼ093 Patent
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`makes specific reference to the ʼ238 Patent (which issued from the ’247
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`U.S. Patent No. 9,043,093
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`Application) on its face, so the patent term of the ʼ093 Patent is calculated from the
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`filing date of the ʼ238 Patent (i.e., December 12, 1995). See Ex. 1027; Abbott
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`Labs. v. Novopharm Ltd., 104 F.3d 1305, 1308–09 (Fed. Cir. 1997). The ʼ093
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`Patent is subject to a Patent Term Adjustment of 593 days (Ex. 1002 at 1).
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`Therefore, the ʼ093 Patent expired on July 27, 2017 (20 years and 593 days from
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`December 12, 1995).
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`Since the ʼ093 Patent has expired during this inter partes review, the Board
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`should apply the standard articulated in Phillips v. AWH Corp., 415 F.3d 1303,
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`1312–1315 (Fed. Cir. 2005) (en banc). In re CSB-Sysem Int’l, 832 F.3d 1335,
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`1341 (Fed. Cir. 2016). Accordingly, all claim terms should be given their plain
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`and ordinary meaning in light of the specification. Petitioners agree with the
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`Board that no express construction of any claim term is required to resolve the
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`issues presented in this proceeding.
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`3
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`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
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`III.
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`CLAIMS 1-44 OF THE '093 PATENT ARE OBVIOUS
`KARLOW AND LAU
`
`A.
`
` “a single airbag extending across at least two seating
`1.
`positions of a passenger compartment of a vehicle, the single
`airbag arranged to deploy into the passenger compartment
`along a lateral side of the vehicle and adjacent each of the at
`least two seating positions”
`The Patent Owner at pages 21 and 22 of the Response alleges that
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`"Petitioners here do not address how the extended airbag provides protection for
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`front seat occupants during a side impact" and points to the annotated FIG. 5 of
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`Karlow, which was included at page 34 of the Final Written Decision in IPR 2016-
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`00364, Unified Patents Inc. v. American Vehicular Sciences, LLC ( Ex. 1019). In
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`the Unified Final Written Decision, the Board stated, with respect to Unified's
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`proposed combination of Karlow and Lau, that "side airbag coverage for the front
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`seat occupant necessarily would be reduced, unless the shape of the airbag were
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`modified in some way …" Ex. 1019 at paragraph bridging pages 34 and 35.
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`Petitioners in this review have provided evidence that a person having
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`ordinary skill (POSITA) when modifying Karlow's airbag, would not reduce the
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`size of the airbag to the point where the airbag no longer protects the front seat
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`occupant.
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`A POSITA would have understood that Karlow's airbag 10 is designed for
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`"deploying head protection in side impact collisions." Karlow (Ex. 1014) 2:20-22.
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`Dr. Rouhana explained that the shape of Karlow's airbag could be modified in a
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`manner in which it extends below the window sill so that it still protects the front
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`seat occupant. The Petition and the Declaration of Petitioners' expert Dr. Rouhana
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`provide a detailed explanation regarding how the shape of Karlow's airbag would
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`be modified, and the modification would still protect the front occupant. For
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`example, Dr. Rouhana states (Ex. 1003 at 179)(emphasis added):
`
`The extension of the curtain in Karlow could be made by elongating
`airbag system 10 of Karlow and placing track 30 behind the rear seat
`window, for example. One of ordinary skill in the art would be
`motivated to mount airbag 10 of Karlow to the C-Pillar instead of the
`B-Pillar, using two or three fixed points at the roof rail and having a
`single track at the C-Pillar behind where the rear outboard seat belt
`was mounted. Such a modification would be a single airbag which is
`extended in length and could be achieved by enlarging Karlow's
`airbag 10, and its housing, and extending it along the entire length of
`the roof side rail. The enlarged airbag, could be a single airbag, with
`internal chambers having flow communication. The shape of the
`airbag could be trapezoidal, rectangular, or custom shaped to cover
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`from the A-pillar to the C-pillar and extend below the window sill.
`The extended bag would be roof-mounted and deploy downward as
`taught by Karlow.
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`Moreover, a POSITA is not an automaton and would have modified the
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`shape of an airbag in a manner in which its size still serves its purpose of
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`protecting a passenger's head. See KSR International Co. v. Teleflex Inc., 550 U.S.
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`398, 421 (U.S. 2007) ("A person of ordinary skill is also a person of ordinary
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`creativity, not an automaton.") In fact, Patent Owner's expert Mr. Nranian
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`acknowledged that an airbag designer would consider different sizes and shapes for
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`the airbag when he was asked about the design of front passenger airbags (Ex.
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`1020 at 39:23-40:2):
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`Q. So you would also look at different
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` sizes and shapes for the passenger airbag,
` passenger front airbag?
`
`A.
`Yeah.
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`Finally, as discussed by Dr. Rouhana at paragraphs 86-87 of his declaration
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`(Ex. 1003), the SAE Technical Paper to Clark and Blechschmidt (Ex. 1017) at FIG.
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`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
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`24 discloses a side window airbag on the passenger side of the vehicle, extending
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`over the windows from the A-pillar past the B-Pillar. See also Petition (Paper 1) at
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`24.
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`Thus, Petitioners have provided evidence that a POSTIA when modifying
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`Karlow's airbag, would not reduce the size of the airbag to the point where the
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`airbag no longer protects the front seat occupant.
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`2. a single, laterally extending airbag that "deploys
`downward"
`The Patent Owner at page 23 of the Response alleges that the Petitioners
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`have failed to meet this feature, pointing to the configuration in Lau (Ex. 1006).
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`However, Petitioners rely on Lau for its teachings regarding protecting occupants
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`in front and rear seats using (1) a single airbag module and (2) a single inflator.
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`Petitioners do not rely on the specific configuration in Lau. In fact, Karlow
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`discloses a single airbag which deploys downward into the passenger compartment
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`along a lateral side of the vehicle. Karlow (Ex. 1014) at 3:49-59;4:39-62; FIGs. 1,
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`2, 3a, 4 & 5); Petition (Paper 1) at 81.
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`U.S. Patent No. 9,043,093
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`B.
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`LEISING AND LAU
`1. "a single airbag extending across a lateral side of the
`vehicle" across to passenger compartments
`The Patent Owner at page 25 of the Response alleges that the Petitioners
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`have failed to meet this feature because "Lau does not satisfy this claim
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`requirement." Again, Petitioners rely on Lau for its teachings regarding protecting
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`occupants in front and rear seats using (1) a single airbag module and (2) a single
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`inflator. Petitioners do not rely on the specific configuration in Lau. See also Final
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`Written Decision in Unified Patents IPR (Ex. 1019) at 25.
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`The Petition at the paragraph bridging pages 25 and 26, when discussing
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`reasons to extend Leising's (Ex. 1005) airbag 41, specifically refers to the
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`regulatory environment and understanding of POSITA in 1995 and why a POSITA
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`would extend a single airbag across two compartments. When discussing the
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`understanding of POSITA in 1995, Dr. Rouhana explained that a POSITA would
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`wish to use a single airbag to eliminate or commonize parts, thus simplifying the
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`design (Ex. 1003 at 93):
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`Of particular significance for this case is the discussion by Karlow et
`al. of mounting an airbag module. They noted that “…mounting of the
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`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
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`module differs depending on specific applications and the objective of
`each OEM. The basic requirements are that the mounting hardware
`hold the module securely during deployment, eliminate or commonize
`parts for cost and mass reduction, and simplify assembly as much as
`possible.” Karlow et al.(1994) (Ex[1018]) at p. 36. Eliminating parts
`and simplifying designs are often seen as critical to implementation of
`technologies into vehicles. These design changes drive cost and mass
`reductions, and simplification reduces warranty costs and failure
`modes, all of which can affect the bottom line and customer
`perception of a brand.
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`When discussing the regulatory environment in 1995, Dr. Rouhana
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`explained that a POSITA would have reason to extend the airbag in view of new
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`side impact regulations and the fact that Leising discloses combining multiple
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`airbags to form a single airbag (Ex. 1003 at 100):
`
`When Leising issued, in 1975, the side impact standard FMVSS 214
`consisted of a static crush test on the side door of a vehicle with no
`dynamic requirements. In addition, frontal airbags were only available
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`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
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`in a very small number of GM and Ford vehicles.1 By 1995, the
`regulatory environment had changed significantly. Frontal airbags, as
`mandated by Congress, were being phased into in every passenger
`vehicle sold in the United States, including 100% of passenger cars by
`1997 (Model Year 1998) and 100% of light trucks by 1998 (Model
`Year 1999). Also regulations involving rear seat occupants had
`recently been promulgated. The new side impact regulations
`(FMVSS 214 in 49 CFR 571.214) for the first time included a crash
`test evaluation for a rear seat occupant. Further, a POSITA also would
`have been apprised of Leising's explicit disclosure of integrating
`multiple airbag portions extending across multiple occupants to form
`a single airbag. (Ex[1005], Leising at 4:19-23).
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`Moreover, as discussed by Dr. Rouhana at paragraphs 86-87 of his
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`declaration (Ex. 1003), the Clark paper (Ex. 1017) at FIG. 24 discloses a single
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`
`
` Kahane, Charles Jesse.: “An evaluation of side structure improvements in
`response to Federal Motor Vehicle Safety Standard 214”, NHTSA Technical
`Report, 1982.
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`U.S. Patent No. 9,043,093
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`side window airbag extending on the passenger side of the vehicle, extending over
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`the windows from the A-pillar past the B-Pillar. See also Petition (Paper 1) at 24.
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`Thus, Petitioners have provided evidence that it would have been obvious to
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`provide "a single airbag extending across a lateral side of the vehicle" across to
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`passenger compartments. See also Final Written Decision in Unified Patents IPR
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`(Ex. 1019) at 19-20.
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`2. a single side airbag extending laterally across two
`passengers rows and any intervening pillar between the two
`rows
`The Patent Owner at Pages 28-60 of the Response alleges that the Petitioners
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`have failed to meet this purported feature for various reasons. Petitioner s respond
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`to each of the Patent Owner's allegations below.
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`Achieving a single airbag extending across to
`a)
`passenger rows and any intervening pillar with
`reasonable expectation of success
`Patent Owner alleges at page 29 that the combination of Leising and Lau
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`"cannot provide airbag protection for occupant contact with the B-pilllar" because
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`Lau discloses an open space between airbags. Again, Petitioners rely on Lau for its
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`teachings regarding protecting occupants in front and rear seats using (1) a single
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`11
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`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
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`airbag module and (2) a single inflator. Petitioners do not rely on the specific
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`configuration of Lau's airbags.
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`And, the claims of the '093 patent do not require B-pillar protection. The
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`claims only require that the single airbag extends "across at least two seating
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`positions of a passenger compartment." Patent Owner has not pointed to any
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`feature in the claims that require B-pillar protection.
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`Moreover, Dr. Rouhana explained in detail how Leising and Lau would be
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`combined in a manner that would protect the occupants from the B-pillar (Ex.
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`1003) at 101:2
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` As such, it would have been obvious to extend Leising's side curtain
`41 to the rear seat. The motivations would include back seat occupant
`safety and meeting the new side impact regulation. The extension
`could be made by merely elongating the side curtain 41 and roof
`storage area of Leising. Such an extension would be achieved by
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`
`
`
`
` See also Petition at pp. 26-27.
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`12
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`U.S. Patent No. 9,043,093
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`enlarging the side airbag of Leising, and its housing, along the entire
`length of the roof. The enlarged airbag, could be a single airbag, with
`internal chambers having flow communication, that is trapezoidal,
`rectangular, or custom shaped to cover from the A-pillar to the C-
`pillar and down below the beltline (window sill). As Leising already
`teaches a roof-mounted airbag, the extended bag would also deploy
`downward, and would pass just inboard of the seat belt D-ring on the
`B-Pillar so as not to interfere with the vehicle's seatbelt. This would
`have the effect of providing front and rear seat protection and it would
`be a holistic solution that provided padding for the B-Pillar, one of the
`injury sources cited in the literature of the time. The single airbag
`would satisfy engineering constraints for simplicity, cost reduction
`and reduction in number of parts, among others mentioned earlier.
`
`Moreover, as discussed by Dr. Rouhana at paragraphs 86-87 of his
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`declaration (Ex. 1003), the Clark paper (Ex. 1017) at FIG. 24 discloses a single
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`side window airbag extending over the windows from the A-pillar past the B-pillar.
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`See also Petition (Paper 1) at 24. Patent Owner asserts that the Clark reference
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`discloses concepts only. Even if Clark's airbag was not used in a production
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`vehicle at the time, Clark (Ex. 1017) at FIG. 24 teaches a person having ordinary
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`13
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`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
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`skill to provide a single airbag that extends from the front passenger compartment
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`to the rear passenger compartment.
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`Patent Owner seems to argue at page 33 that Clark is not combinable with
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`Leising because Clark's side window airbag is door-mounted. However, Petitioners
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`are not bodily incorporating the entire configuration of Clark. Petitioners are
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`relying on Clark for its teaching of a single airbag that extends from the front
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`passenger compartment to the rear passenger compartment to support the
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`Petitioners' proposed combination in which Leising's side curtain airbag 41 is
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`extended.
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`Lau's B- pillar mounted airbag being blocked
`b)
`from deploying
`The Patent Owner argues at page 34 of the Response against "installing and
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`airbag system in the B-pillar as taught by Lau." Again, Petitioners rely on Lau for
`
`its teachings regarding protecting occupants in front and rear seats using (1) a
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`single airbag module and (2) a single inflator. Petitioners do not rely on the
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`specific configuration in Lau.
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`14
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`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
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`Lau's B- pillar mounted airbag deployment doors
`c)
`The Patent Owner argues at page 38 of the Response against installing an
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`airbag system in the B-pillar with breakaway doors, as taught by Lau. Again,
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`Petitioners rely on Lau as disclosing protecting occupants in front and rear seats
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`using (1) a single airbag module and (2) a single inflator. Petitioners do not rely on
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`the specific configuration in Lau. See also Final Written Decision in Unified
`
`Patents IPR (Ex. 1019) at 25-26.
`
`Protection of out-of-position (OOP) occupant
`d)
`The Patent Owner argues at pages 39-41 of the Response that the
`
`combination of Leising and Lau would not protect out-of-position (OOP)
`
`occupants and that the references do not discuss compatibility with seat belts.
`
`Again, Petitioners rely on Lau for its teachings regarding protecting occupants in
`
`front and rear seats using (1) a single airbag module and (2) a single inflator.
`
`Petitioners do not rely on the specific configuration in Lau. See also Final Written
`
`Decision in Unified Patents IPR (Ex. 1019) at 25-26.
`
`Moreover, the claims of the '093 patent do not include any limitation
`
`regarding protecting an OOP occupant. In fact, the '093 patent discusses using out-
`
`
`
`15
`
`
`
`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
`
`of-position sensors to detect out-of-position passengers and suppress airbag
`
`deployment. Ex. 1001, '093 patent, at 14:56-64. There is no disclosure in the '093
`
`patent that the claimed features provide any protection for out-of-position
`
`occupants.
`
`Furthermore, the claims of the '093 patent also do not include any limitation
`
`regarding compatibility with seat belts. And the '093 patent itself does not discuss
`
`compatibility with seat belts. See Final Written Decision in Unified Patents IPR
`
`(Ex. 1019) at 27.
`
`Interference with seat belt by Lau's B-pillar
`e)
`mounted airbag
`The Patent Owner at pages 45-48 of the Response includes arguments that
`
`Lau's B-pillar mounted airbag would interfere with the seat belt. Again, Petitioners
`
`rely on Lau for its teachings regarding protecting occupants in front and rear seats
`
`using (1) a single airbag module and (2) a single inflator. Petitioners do not rely on
`
`the specific configuration in Lau. See also Final Written Decision in Unified
`
`Patents IPR (Ex. 1019) at 25-26.
`
`
`
`16
`
`
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`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
`
`
`Moreover, Dr. Rouhana has explained in detail how a POSITA would extend
`
`Leising's airbag so that the modified airbag would not interfere with the vehicle's
`
`seat belts (Ex. 1003 at 108):3
`
`Further, in view of the technical knowledge at the time, a POSITA
`would provide an airbag which covered the side interior (including the
`B-pillar) because B-pillars were implicated as a cause of injury in
`industry studies as mentioned earlier (See paragraph 95). The
`modified airbag would not interfere with the seat belt of a vehicle.
`Leising’s curtain leaves the module at the roof rail, other than being
`propelled downward, there is no constraint pulling it toward the side
`structure of the vehicle. Since the projected path is dependent upon
`the design of the module, it could be designed to deploy just inboard
`of the D-ring, allowing it to pass unimpeded and at the same time still
`deploying between the occupant and the side of the vehicle. It is also
`easy to conceive of a curtain with a notch or cut-out designed in its
`structure so the interaction with the seatbelt is minimized while still
`providing head protection for the seated occupant. (e.g. Karlow
`
`
`
`
`
` See also Petition at pp. 26-27.
`
`17
`
` 3
`
`
`
`
`
`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
`
`
`(Ex.[1014] at FIG. 4). In addition, it was common practice at the time
`to incorporate the seat-belt system into the vehicle seat (as opposed to
`the door). (see e.g., US 5,123,673 or US 5,015,010). As a possible
`design alternative, a POSITA could move the seat-belt system to the
`vehicle seat to further avoid contact with the airbag. A POSITA
`would make these alterations for numerous reasons, including a better
`seat belt fit regardless of seat position or occupant size. Seat belt fit is
`one of the important parameters in determining how well occupants
`are protected in a crash.
`
`Finally, as discussed above, the claims of the '093 patent do not include any
`
`limitation regarding compatibility with seat belts. And the '093 patent does not
`
`discuss compatibility with seat belts. As the Board found in the Final Written
`
`Decision in the Unified Patents IPR, the lack of discussion regarding compatibility
`
`of seat belts in the '093 patent supports Petitioners' position that handling seat-belt
`
`interference was "within the level of ordinary skill." Ex. 1019 at 27.
`
`Compatibility of Lau's inflator with Leising
`f)
`The Patent Owner at pages 49-50 of the Response asserts that Lau's inflator,
`
`in which airbags receive air from opposite sides of the inflator, is incompatible
`
`with Leising's airbag system. Again, Petitioners rely on Lau for its teachings
`
`
`
`18
`
`
`
`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
`
`regarding protecting occupants in front and rear seats using (1) a single airbag
`
`module and (2) a single inflator. Petitioners do not rely on the specific
`
`configuration of Lau's inflator.
`
`Alleged inoperability of Leising's airbag if it were
`g)
`modified to extend across two rows
`The Patent Owner at pages 51-55 of the Response asserts that Leising's
`
`airbag system would be unsuitable in view of the deployment of the torso bag 43
`
`against the back of an out-of-position occupant in the manner shown in FIG. 5 of
`
`Leising.
`
`First, the Patent Owner has not alleged that the configuration of Leising's
`
`side curtain airbag 41 would have been unsuitable. Second, as discussed above,
`
`the claims of the '093 patent do not include any limitation regarding protecting an
`
`OOP occupant. In fact, the '093 patent discloses protecting out-of-position (OOP)
`
`occupants by using out-of-position sensors to detect out-of-position passengers and
`
`then suppressing airbag deployment when it is determined that an occupant is out
`
`of position. Ex. 1001, '093 patent, at 14:56-64. There is no disclosure in the '093
`
`patent that the claimed features provide protection for out-of-position occupants.
`
`
`
`19
`
`
`
`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
`
`
`The Patent Owner at page 55 of the Response asserts that Leising's airbag
`
`system would be unsuitable because Lau does not provide any B-pillar protection.
`
`Again, Petitioners rely on Lau for its teachings regarding protecting occupants in
`
`front and rear seats using (1) a single airbag module and (2) a single inflator.
`
`Petitioners do not rely on the specific configuration in Lau.
`
`The Patent Owner at pages 56-57 of the Response asserts that Lau's torso
`
`bag 43 would interfere with seat belts. Again, the claims of the '093 patent also do
`
`not include any limitation regarding compatibility with seat belts, let alone
`
`compatibility of a torso bag with seat belts. And compatibility with seat belts was a
`
`concern of a person having ordinary skill, as stated by Dr. Rouhana.. Ex. 1003 at
`
`104. The fact is that the '093 patent does not discuss compatibility with seat belts,
`
`which as the Board found in the Final Written Decision in the Unified Patents IPR
`
`supports Petitioner's position that handling seat-belt interference was "within the
`
`level of ordinary skill." Ex. 1019 at 27.
`
`The Patent Owner at pages 57-58 of the Response asserts that combining
`
`Leising's curtain airbag 41 with Leising's torso airbag 43 using the specific filler
`
`tubes would require an inflator that is too powerful. However, Petitioner's alleged
`20
`
`
`
`
`
`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
`
`modification of Leising is to extend Leising's curtain airbag 41, not to combine a
`
`curtain airbag with a torso airbag. As such, Patent Owner's arguments are
`
`inapplicable to the proposed combination.
`
`Finally, both Petitioner's expert Dr. Rouhana and Patent Owner's expert Mr.
`
`Nranian agree that airbag design is about minimizing risk, not eliminating risk. See
`
`Transcript of Dr. Rouhana deposition (Ex. 2026) at 16:22-7:8 and Transcript of
`
`Mr. Nranian deposition (Ex. 1020) at 41:25-42:6. See also Final Written Decision
`
`in Unified Patents IPR (Ex. 1019) at 27-28.
`
`h) Objective evidence demonstrating reasonable
`expectation of success
`The Patent Owner at pages 57-61 of the Response asserts that the Petition
`
`does not demonstrate that any of the challenged claims are obvious because the
`
`Petition lacks experimental data, pointing to Epistar v. Boston University,
`
`IPR2013-00298.
`
`Experimental data is not necessary to show obviousness in predictable
`
`technologies, and Petitioners have demonstrated that the challenged claims are
`
`obvious by the arguments and evidence included in the Petition.
`
`
`
`21
`
`
`
`Petitioner Reply Brief
`U.S. Patent No. 9,043,093
`
`
`Epistar is directed to a complex technology, a method of growing a GaN
`
`film on a buffer layer. In Epistar, the Board found that "Petitioner does not show
`
`sufficiently that Manabe’s process conditions produce a similarly 'polycrystalline'
`
`GaN buffer layer, when gallium is selected over aluminum as a starting material."
`
`Epistar v. Boston University, IPR2013-00298, Paper 18 at 11 (PTAB. Nov. 15,
`
`2013) (Decision Denying Institution).
`
`In contrast to the technology in Epistar, the present technology is a
`
`predictable, mechanical technology in which Petitioner's proposed modification is
`
`extending the length of an airbag, which would deploy downward in the manner of
`
`the primary reference. See, for example, Tokai Corp. v. Easton Enterprises, Inc.,
`
`632 F.3d 1358, 1371 ( Fed. Cir. 2011) ("As the Supreme Court recognized in KSR,
`
`the nature of the mechanical arts is such that 'identified, predictable solutions' to
`
`known problems may be within the techn
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