throbber
Trials@uspto.gov
`571-272-7822
`
`
`
`Paper 72
` Entered: January 10, 2019
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
`(d/b/a WABTEC CORPORATION),
`Petitioner,
`
`v.
`
`SIEMENS MOBILITY, INC.,1
`Patent Owner.
`____________
`
`Case IPR2017-00580
`Patent 9,233,698 B2
`____________
`
`
`Before KRISTEN L. DROESCH, MEREDITH C. PETRAVICK, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`
`DROESCH, Administrative Patent Judge.
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a), 37 C.F.R. § 42.73
`
`
`
`
`
`
`1 Patent Owner represents that on June 1, 2018, Siemens Industry, Inc.
`transferred ownership of the patent at issue to Siemens Mobility, Inc. See
`Paper 58. Siemens Mobility, Inc. is represented by the same counsel that
`previously represented Siemens Industry, Inc. in this proceeding. See id.
`
`
`
`
`
`
`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`I. INTRODUCTION
`
`A. Background
`
`We have authority to hear this inter partes review under 35 U.S.C.
`
`§ 6, and this Final Written Decision is issued pursuant to 35 U.S.C. § 318(a)
`
`and 37 C.F.R. § 42.73. For the reasons that follow, we determine that
`
`Petitioner has not shown by a preponderance of the evidence that claims 1,
`
`2, 5, 10, 11, 14, 17, and 18 (“challenged claims”) of U.S. Patent No.
`
`9,233,698 B2 (“’698 Patent”) are unpatentable.
`
`B. Procedural History
`
`Westinghouse Air Brake Technologies Corporation (d/b/a Wabtec)
`
`(“Petitioner”) filed a Petition (Paper 2, “Pet.”) for inter partes review of the
`
`challenged claims of the ’698 Patent. See 35 U.S.C. §§ 311–312. Siemens
`
`Mobility, Inc. (“Patent Owner”) filed a Preliminary Response (Paper 10,
`
`“Prelim. Resp.”). Pursuant to 35 U.S.C. § 314, we instituted trial on July 20,
`
`2017, as to some of the challenged claims of the ’698 Patent (Paper 12,
`
`“Institution Decision” or “Dec.”).
`
`After institution of trial, Patent Owner filed a Patent Owner Response
`
`(Paper 20, “PO Resp.”), to which Petitioner filed a Reply (Paper 26,
`
`“Reply”). Patent Owner also filed a Contingent Motion to Amend
`
`(Paper 21, “Mot. to Amend”), to which Petitioner filed an Opposition
`
`(Paper 27), to which Patent Owner filed a Reply (Paper 33).
`
`Petitioner relies on a Declaration of Samuel Phillip Pullen, Ph.D.
`
`(Ex. 1002) to support its Petition, and a second Declaration of Dr. Pullen
`
`(Ex. 1038) as well as a Declaration of Richard M. Goodin (Ex. 1027) to
`
`support its Reply. Patent Owner relies on Declarations of Shukri Souri,
`
`Ph.D. (Ex. 2004, Ex. 2012) to support its Patent Owner Response. Petitioner
`
`
`
`2
`
`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`also relies on a Declaration of Jeff Kernwein (Ex. 1040) to support its
`
`Opposition to Patent Owner’s Contingent Motion to Amend. All witnesses
`
`were cross-examined during the trial, and transcripts of their depositions are
`
`in the record. Ex. 1031 (Souri Deposition); Exs. 2025, 2033 (Pullen
`
`Depositions); Ex. 2031 (Goodin Deposition); Ex. 2032 (Kernwein
`
`Deposition).
`
`Patent Owner filed a Motion to Exclude Exhibit 1027 (Goodin
`
`Declaration) (Paper 36, “PO Mot. Excl.”), to which Petitioner filed an
`
`Opposition (Paper 44, “Opp. Mot. Excl.”), to which Patent Owner filed a
`
`Reply (Paper 47, “Reply Mot. Excl.”). Patent Owner also filed a Motion for
`
`Observations Regarding Cross-Examination of Petitioner’s Expert Richard
`
`Goodin (Paper 37, “PO Mot. Obs.”), to which Petitioner filed a Response
`
`(Paper 45).
`
`Petitioner also filed a Motion to Exclude Exhibit 2029 (Paper 40), to
`
`which Patent Owner filed an Opposition (Paper 43), to which Petitioner filed
`
`a Reply (Paper 48).
`
`Oral argument was held on April 17, 2018. A transcript of the oral
`
`argument is included in the record. Paper 54 (“Tr.”).
`
`Following oral argument, on April 27, 2018, pursuant to SAS Institute,
`
`Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018), we modified the Institution
`
`Decision to institute review of all challenged claims on all grounds presented
`
`in the Petition (Paper 49, “SAS Order”). Accordingly, this inter partes
`
`review involves the challenge to claims 1, 2, 5, 10, 11, 14, 17, and 18 as
`
`unpatentable under 35 U.S.C. § 103 in view of U.S. Patent Application
`
`Publication No. 2014/0172205 A1 (filed Sept. 20, 2013, published June 19,
`
`2014) (Ex. 1011, “Ruhland”). See Dec. 28; SAS Order 2.
`
`
`
`3
`
`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`The Chief Administrative Patent Judge then granted a good cause
`
`extension of the one-year period for issuing a Final Written Decision. See
`
`Paper 51; see also Paper 52 (order extending pendency of proceeding up to
`
`six months). We authorized the parties to file supplemental briefing to
`
`address claims 5 and 14, which were not part of the partial institution in our
`
`initial Institution Decision. Paper 53.
`
`Patent Owner filed a Supplemental Response (Paper 55), to which
`
`Petitioner filed a Supplemental Reply (Paper 62). Patent Owner also filed a
`
`Supplemental Contingent Motion to Amend (Paper 57), to which Petitioner
`
`filed an Opposition (Paper 61), to which Patent Owner filed a Reply (Paper
`
`66). Dr. Pullen was cross-examined again following the SAS Order, and a
`
`transcript of this deposition is in the record. Ex. 2034.
`
`Petitioner also submitted Supplemental Information (Paper 63, “Pet.
`
`Suppl. Info.”), to which Patent Owner filed a Response (Paper 65).
`
`Supplemental oral argument was held on August 17, 2018. A
`
`transcript of the oral argument is included in the record. Paper 71 (“Suppl.
`
`Tr.”).
`
`C. Related Matters
`
`
`
`The parties indicate the ’698 Patent is asserted in Siemens Industry,
`
`Inc. v. Westinghouse Air Brake Technologies Corp., Case No. 1:16-cv-
`
`00284 (D. Del.). Pet. 26; Paper 5, 1; Paper 6, 2; Paper 8, 1. The parties also
`
`indicate that a petition for inter partes review, which was denied, was filed
`
`for the ’698 Patent in Case IPR2017-00581. Paper 5, 1; Paper 6, 2; Paper 8,
`
`1. The parties further indicate a petition for inter partes review, which was
`
`denied, was filed for related U.S. Patent No. 8,714,494, Case IPR2017-
`
`00584. Paper 5, 1; Paper 6, 2; Paper 8, 1.
`
`4
`
`
`
`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`D. The ’698 Patent (Ex. 1001)
`
`The ’698 Patent issued from an application filed on April 16, 2014 as
`
`a continuation-in-part of Application No. 13/608,313, filed on September 10,
`
`2012, now U.S. Patent No. 8,714,494 (“’494 Patent”). Ex. 1001, (22), (63).
`
`The ’698 Patent discloses a railway safety critical application system and
`
`method that substitutes commercial off-the-shelf (COTS) hardware and/or
`
`software for railway-domain specific product components, yet is validated to
`
`conform to railway safety critical system failure-free standards. See id. at
`
`Abstract, 2:46–53. The train includes an onboard train management system
`
`(TMS), onboard unit (OBU), onboard data recording system (DRS), crew
`
`human-machine interface (HMI), wireless data/communications system,
`
`navigation position system, train location detection system, wireless
`
`data/communications system, drive system, throttle control, and brake
`
`system. See id. at 4:63–5:51, Fig. 1. Each of the TMS, OBU, DRS, and
`
`HMI have internal computer/controller platforms of known design that
`
`communicate with each other via a data bus. See id. at 5:52–56.
`
`“However[,] the number of computer controllers, their location and their
`
`distributed functions may be altered as a matter of design choice.” Id. at
`
`5:56–58.
`
`
`
`5
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`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`Figure 2 of the ’698 Patent is reproduced below:
`
`
`
`Figure 2 depicts a physical or virtual controller platform 100 including
`
`processor 110, controller bus 120, and internal or external memory 130 that
`
`includes operating system 140 and application program 150 software module
`
`instruction sets that are accessed and executed by the processor, and cause
`
`its respective control device (e.g., TMS, OBU, DRS, HMI) to perform
`
`control operations. See Ex. 1001, 6:3–12.
`
`Figure 4 of the ’698 Patent is reproduced below:
`
`
`
`6
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`

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`IPR2017-00580
`Patent 9,233,698 B2
`
`Figure 4 depicts a block diagram of communication interaction among safety
`
`critical system control systems. See Ex. 1001, 4:22–24. Safety critical
`
`systems SCS1 and SCS2 each comprise paired set of tasks T1 300 and T2
`
`320 in bilateral communication with each other via inter-controller data
`
`interface or internal data interface 330. See id. at 7:19–22, 7:60–61. Tasks
`
`300, 320 run in commercially available devices such as programmable logic
`
`controllers, separate or unitized computer/controller motherboards, or COTS
`
`computer/motherboards. See id. at 7:22–27.
`
`By way of further example if the tasks 300, 320 are executed
`literally or virtually in personal computers, they may be executed
`on the same or separate controllers 100, in one or more
`computers that are housed in separate devices, combined in a
`common device housing, separate boards in a server rack, etc. . . .
`In
`another
`exemplary
`embodiment
`or
`configuration
`implementation of the separate tasks T1 and T2, both are
`executed simultaneously and virtually in real time, in a common
`computer processor 100, with the respective SCI 240 and
`SCO 250 sub-tasks also implemented virtually.
`
`Ex. 1001, 7:27–48. Task T1 300 is capable of bilateral communication with
`
`critical system data bus 92 through communications pathway 340. See id. at
`
`7:49–53. Task T1 300 has incoming security code verification module 240
`
`enabled to verify data integrity of incoming or input safety critical systems
`
`message (SCSMI). See id. at 7:53–54. SCMSIs include critical input
`
`data (DI) and an input security code (SI) “generated by known CHECK–
`
`SUM, HASH, protocols.” See id. at 6:54–7:1. Task T1 300 does not have
`
`the capability to generate an outgoing output safety critical systems
`
`message (SCSMO) output security code (SCO). See id. at 7:55–56. Task
`
`T2 320 has an enabled outgoing security code (SCO) generator 250, but is
`
`incapable of transmitting an SCO and critical output data directly to the
`
`
`
`7
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`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`critical system data bus 92. See id. at 7:57–60. Task T2 320 is only capable
`
`of transmitting the SCO to task T1 300 via internal data interface 330. See
`
`id. at 7:60–61. Task T2 320 is only capable of receiving SCSMI through
`
`unilateral incoming communications pathway 350 and can verify data
`
`integrity with incoming security code (SCI) verification module 240. See id.
`
`at 7:60–64.
`
`E. Illustrative Claim
`
`
`
`Of the challenged claims, claims 1, 10, and 17 are independent, with
`
`claims 2 and 5 dependent from claim 1, claims 11 and 14 dependent from
`
`claim 10, and claim 18 dependent from claim 17. Claim 1 is illustrative and
`
`reproduced below:
`
`1. A control system for a railway safety critical application
`system, comprising:
`at least one controller executing first and second tasks;
`the first task having an external bilateral communications
`interface capable of sending and receiving a safety critical
`systems message within a railway safety critical application
`system, the message including a security code and safety
`critical data;
`the second task having an external communications interface
`capable of receiving a safety critical systems message, but
`incapable of sending a safety critical systems message that is
`generated within the second task, the second task having a
`security code generator; and
`an inter-task communications pathway coupling the first and
`second tasks;
`wherein the first and second tasks respectively receive an input
`safety critical systems message including input safety critical
`systems data and an input security code, verify the input
`message integrity and generate output safety critical systems
`data, the second task generates an output security code and
`sends it to the first task, and the first task sends an output
`safety critical systems message including the output safety
`
`
`
`8
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`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`critical systems data and the second task output security code
`for use within the railway safety critical application system.
`
`Ex. 1001, 9:5–29.
`
`II. ANALYSIS
`
`A. Brief Overview
`
`
`
`Petitioner asserts that the challenged claims are unpatentable over
`
`Ruhland (Ex. 1011), which is a U.S. patent application publication filed on
`
`September 20, 2013, that claims priority to a provisional application filed on
`
`September 20, 2012. See Pet. 29–65; Ex. 1011, (22), (60). Petitioner
`
`contends Ruhland is prior art under 35 U.S.C. § 102(a)(2), as amended by
`
`the Leahy-Smith America Invents Act (AIA),2 at least based on its filing
`
`date of September 20, 2013. See id. at 30–31. Petitioner explains that the
`
`’698 Patent, which was filed on April 16, 2014, is a continuation-in-part of
`
`the application that issued as the ’494 Patent. See id. at 17. Petitioner
`
`argues the ’698 Patent is only entitled to its April 16, 2014, filing date, and
`
`is not entitled to the September 10, 2012, filing date of the ’494 Patent,
`
`because the ’494 Patent does not provide adequate disclosure under
`
`35 U.S.C. § 1123 for the challenged claims of the ’698 Patent. See id. at 17–
`
`19 (citing Ex. 1002 ¶¶ 67–78; Manual of Patent Examining Procedure
`
`§ 211.05). As detailed in the analysis below, the central question before us
`
`
`
`2 Patent Owner disputes that the America Invents Act applies to the
`’698 Patent. See PO Resp. 22–23.
`3 Section 4(c) of the AIA redesignated pre-AIA 35 U.S.C. § 112 ¶ 1 as
`35 U.S.C. § 112(a). 125 Stat. at 296. Because the issues before us hinge
`on whether the ’494 Patent provides adequate disclosure under 35 U.S.C.
`§ 112, and because the text of pre-AIA 35 U.S.C. § 112 ¶ 1 is identical to
`35 U.S.C. § 112(a), we need not address Patent Owner’s assertion that the
`’698 Patent is not subject to the AIA.
`9
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`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`is whether Ruhland is prior art to the ’698 Patent, specifically whether the
`
`’698 Patent is entitled to the earlier September 10, 2012, filing date of the
`
`’494 Patent, which ultimately turns on whether the ’494 Patent provides
`
`written description and enablement support for the challenged claims of the
`
`’698 Patent. See id.
`
`B. Person of Ordinary Skill in the Art
`
`Petitioner asserts that a person of ordinary skill in the art:
`
`as of April 16, 2014 [(the ’698 Patent filing date)] would have
`had at least a bachelor’s of science degree in electrical
`engineering, mechanical
`engineering,
`aeronautics
`and
`astronautics, or a related engineering field, and would also have
`had at least three years of experience with process controls and
`their use in transportation safety systems. . . . Such a [person of
`ordinary skill in the art] would have had knowledge of control
`systems for transportation, and would have understood how to
`search available literature for relevant publications.
`
`Pet. 28 (citing Ex. 1002 ¶¶ 62–64).
`
`
`
`Patent Owner asserts that the issues raised in the Petition do not
`
`require an express finding by the Board regarding the level of ordinary skill
`
`in the art, and contends the level of ordinary skill in the art may instead be
`
`properly deemed to be reflected by the prior art of record. See PO Resp. 23–
`
`24 (citing Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001); In re
`
`GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)). Patent Owner also
`
`contends that, if an express finding is necessary, a person of ordinary skill in
`
`the art “would have a bachelor’s degree with at least five years of experience
`
`in hardware and software controls and safety systems for transportation, or
`
`alternatively a master’s degree with two years of experience or a Ph.D.
`
`degree with like experience.” Id. at 24 (citing Ex. 2012 ¶¶ 20–22). Patent
`
`
`
`10
`
`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`Owner also asserts the analysis of the effective filing date issue should be
`
`the same regardless of whether the Board adopts Petitioner’s or Patent
`
`Owner’s definition of a person of ordinary skill in the art. See id.
`
`
`
`
`
`To the extent that an explicit definition of a person of ordinary skill in
`
`the art is necessary to resolve the issues before us, we determine that a
`
`person of ordinary skill in the art, at the time of the filing date of the
`
`’494 Patent4, is reflected by Petitioner’s definition:
`
`at least a bachelor’s of science degree in electrical engineering,
`mechanical engineering, aeronautics and astronautics, or a
`related engineering field, and would also have had at least three
`years of experience with process controls and their use in
`transportation safety systems. . . . Such a [person of ordinary
`skill in the art] would have had knowledge of control systems for
`transportation, and would have understood how to search
`available literature for relevant publications.
`
`Pet. 28 (citing Ex. 1002 ¶¶ 62–64). We further agree with Patent Owner that
`
`our analysis is not altered by choosing Petitioner’s definition over Patent
`
`Owner’s definition.
`
`C. Claim Construction
`
`
`
`For petitions filed before November 13, 2018, claims of an unexpired
`
`patent are interpreted using the broadest reasonable interpretation in light of
`
`
`
`4 As discussed below in Section II.D., to be entitled to an earlier effective
`filing date, the earlier application or patent must comply with the written
`description requirement of 35 U.S.C. § 112, which is viewed from the
`perspective of one skilled in the art as of the filing date sought. Lockwood v.
`Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997); VasCath v.
`Mahurkar, 935 F.2d 1555, 1563–64 (Fed. Cir. 1991). Here, the parties
`dispute whether the ’698 Patent is entitled to the filing date of the ’494
`Patent.
`
`11
`
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`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`the specification. See 37 C.F.R. § 42.100(b) (2016); Cuozzo Speed Techs.,
`
`LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Under the broadest
`
`reasonable interpretation standard, claim terms are given their ordinary and
`
`customary meaning as would be understood by one of ordinary skill in the
`
`art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
`
`F.3d 1249, 1257 (Fed. Cir. 2007). “‘Where an inventor chooses to be his
`
`own lexicographer and to give terms uncommon meanings, he must set out
`
`his uncommon definition in some manner within the patent disclosure’ so as
`
`to give one of ordinary skill in the art notice of the change.” In re Paulsen,
`
`30 F.3d 1475, 1480 (Fed. Cir. 1994) (quoting Intellicall, Inc. v.
`
`Phonometrics, Inc., 952 F.2d 1384, 1387–88 (Fed. Cir. 1992)). In the
`
`absence of such a definition, limitations are not to be read from the
`
`specification into the claims. See In re Van Geuns, 988 F.2d 1181, 1184
`
`(Fed. Cir. 1993).
`
`
`
`In the Petition, Petitioner does not provide a claim construction for
`
`any claim term or phrase. See Pet. 28. Patent Owner provides claim
`
`constructions for the terms “controller,” “task,” and “safety critical.” See
`
`PO Resp. 24–36. Petitioner proposes constructions for those same terms in
`
`its Reply. See Reply 6–12.
`
`Controller
`
`
`
`An explicit definition for the term “controller” is not provided in the
`
`’698 Patent. See Ex. 1001; accord Ex. 2004 ¶ 64. For the purpose of the
`
`Institution Decision, we adopted Patent Owner’s proposed construction for
`
`“controller” as “[c]omputer hardware, firmware and/or software that controls
`
`the operations of an associated system, subsystem, or function.” See Dec.
`
`10–12; see also Prelim. Resp. 43–44 (citing Ex. 1001, 5:52–67, 6:3–18;
`
`
`
`12
`
`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`Ex. 2004 ¶¶ 64–67). Patent Owner maintains its proposed construction for
`
`controller. PO Resp. 24–25.
`
`
`
`Patent Owner asserts that Petitioner’s witness Dr. Pullen agrees with
`
`Patent Owner’s construction for “controller.” See PO Resp. 24–25 (quoting
`
`Ex. 2025, 18:13–17, 27:9–28:2, 29:7–14). Patent Owner clarifies that its
`
`argument in its Preliminary Response was intended to suggest that the “at
`
`least one controller executing first and second tasks,” recited in claim 1 of
`
`the ’698 Patent, still requires some hardware, such as a processor to execute
`
`the software. See id. at 25 (citing Prelim. Resp. 12). Patent Owner also
`
`clarifies that its Preliminary Response argument was not intended to suggest
`
`that the ’698 Patent claims require the recited controller to be the hardware.
`
`See id. (citing Prelim. Resp. 12). According to Patent Owner, “[t]he recited
`
`‘at least one controller executing first and second tasks’ could be satisfied by
`
`at least one software controller executing first and second tasks.” Id.; see id.
`
`at 26 (citing Ex. 1001, 6:3–12).
`
`
`
` In reply, Petitioner asserts that the District Court’s construction of
`
`“controller” to mean “computer hardware and software that collectively
`
`control the operation of an associated system, subsystem or function”
`
`reflects the actual use of the term “controller” in the ’494 Patent and
`
`’698 Patent. See Reply 6–7 (quoting Ex. 1029, 2; Ex. 1030, 16–18; citing
`
`Ex. 1012, 7–11). According to Petitioner, the District Court’s construction
`
`is correct because Patent Owner requested reconsideration of other claim
`
`terms but did not request reconsideration of the construction for “controller.”
`
`See id. at 7 (citing Ex. 1033); see also Tr. 11:11–13, 12:5–7 (arguing the
`
`District Court construction is correct). Petitioner also asserts, “in the
`
`discussion of Figure 4 of the ’494 Patent, every embodiment described
`
`
`
`13
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`

`IPR2017-00580
`Patent 9,233,698 B2
`
`requires redundant hardware controllers.” Reply 7 (citing Ex. 1012, 7:11–
`
`19). Petitioner asserts that Figure 2 of the ’494 Patent and its descriptions
`
`were copied from a prior unrelated Siemens patent application and deserves
`
`no weight for an effective filing date analysis. See id. at 2 (citing Ex. 1025).
`
`According to Petitioner, “[t]here is no discussion, outside of the copied text
`
`regarding Figure 2, of an embodiment of the ’494 Patent in which a
`
`controller is anything but hardware.” Id. at 7. Petitioner contends, “[e]ven
`
`in the context of Figure 2, (Ex. 1012, 5:62-6:47), the potentially virtualized
`
`item is the controller platform 100, which only makes up a small part of the
`
`individual hardware controllers C1 or C2 of vital system VS1 of Figure 4.”
`
`Id. at 7–8. In further support of its construction, Petitioner contends “[t]he
`
`only communications mechanism for ‘controllers’ to communicate in the
`
`’494 Patent is an inter-controller data bus, which is a hardware pathway
`
`connecting two physical devices,” and “[t]here is no discussion . . . about
`
`connecting controllers via anything but a hardware construct.” Id. at 7
`
`(citing Ex. 1012, 7:11–14; Ex. 1031, 182:1–7).
`
`
`
`We have considered the District Court’s claim construction for
`
`“controller” and Petitioner’s arguments in support thereof, but are not
`
`persuaded that “computer hardware and software that collectively control
`
`the operation of an associated system, subsystem or function” (emphasis
`
`added) is consistent with the broadest reasonable interpretation in light of the
`
`’698 Patent Specification. See Power Integrations, Inc. v. Lee, 797 F.3d
`
`1318, 1326 (Fed. Cir. 2015) (explaining that the Board should assess
`
`whether a previous judicial interpretation of a disputed claim term is
`
`consistent with the broadest reasonable construction of the term). We also
`
`are not persuaded by Petitioner’s arguments alleging that the ’494 Patent
`
`
`
`14
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`

`IPR2017-00580
`Patent 9,233,698 B2
`
`disclosures directed to the physical or virtual controller depicted in Figure 2
`
`should be given no weight because they were copied from an unrelated
`
`patent application. Petitioner does not direct us to binding or persuasive
`
`authority to support its argument. See Reply 2, 7.
`
`
`
`We agree with Patent Owner’s construction. The ’698 Patent
`
`Specification supports Patent Owner’s construction. The ’698 Patent
`
`discloses a physical or virtual controller platform 100 including a processor
`
`110 coupled to one or more internal or external memory devices 130 that
`
`include therein operating system 140 and application program 150 software
`
`module instruction sets that are accessed and executed by the processor and
`
`cause its respective control device to perform control operations. See Ex.
`
`1001, 3–12; Fig. 2. In other words, the ’698 Patent discloses that the
`
`processor is hardware that accesses the operating system and application
`
`program software module instruction sets to perform the control operations.
`
`See id.; see also id. at 6:18–25 (describing preferred aspect of the present
`
`invention as hardware including a central processing unit) Moreover, the
`
`’698 Patent discloses, “it is also to be understood that the present invention
`
`may be implemented in various forms of hardware, software, firmware,
`
`special purpose processors, or a combination thereof.” Id. at 6:15–18
`
`(emphasis added).
`
`
`
`The testimony of Petitioner’s witness Dr. Pullen undercutting
`
`Petitioner’s construction for “controller” is also compelling. For example, in
`
`response to Patent Owner’s counsel asking what Dr. Pullen meant by a
`
`“controller,” Dr. Pullen responded that “[c]ontroller is either hardware or
`
`software that . . . implements and manages the procedure.” Ex. 2025, 18:13–
`
`17 (emphasis added). Dr. Pullen’s testimony is consistent with Patent
`
`
`
`15
`
`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`Owner’s assertion that the controller recited “in the ’698 Patent [claims] still
`
`requires some hardware (i.e., a processor) to execute the software but . . . the
`
`’698 Patent claims [do not] require the recited controller to be that
`
`hardware.” PO Resp. 25; see also Tr. 47:11–14 (arguing the same). As
`
`another example, in response to Patent Owner’s counsel asking Dr. Pullen
`
`whether he agreed with the construction of “controller” in the Institution
`
`Decision (see Ex. 2025, 27:5–24), Dr. Pullen responded: “So I think this
`
`definition of controller is close to the one I used. I would strike the word
`
`“computer” in the first -- as unnecessarily limiting, but otherwise, it’s a --
`
`basically a reasonable broad definition.” Ex. 2025, 29:10–14.
`
`
`
`For all of the foregoing reasons, we determine that the broadest
`
`reasonable interpretation, in light of the ’698 Patent Specification, of
`
`“controller” is “[c]omputer hardware, firmware and/or software that controls
`
`the operations of an associated system, subsystem, or function.”
`
`Task
`
`
`
`An explicit definition for the term “task” is not provided in the
`
`’698 Patent. See Ex. 1001; accord Ex. 2004 ¶ 63. As mentioned above,
`
`Petitioner does not provide a proposed construction for “task” in the
`
`Petition. See Pet. 28–29. For the purpose of the Institution Decision and
`
`based on the record and arguments presented at that time, we construed
`
`“task” as: “(1) A sequence of instructions treated as a basic unit of work by
`
`the supervisory program of an operating system [ ];” and “(2) . . . a software
`
`component that can operate in parallel with other software components.”
`
`Dec. 10 (emphasis added); see id. at 8–9. Patent Owner argues the
`
`construction in the Institution Decision is “legally erroneous because it does
`
`not comport with the broadest reasonable interpretation of ‘task’ in light of
`
`
`
`16
`
`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`the specification,” and “is factually erroneous because the Board appears to
`
`have misapplied the multiple definitions of the term ‘task’” in the IEEE
`
`STANDARD COMPUTER DICTIONARY A COMPILATION OF IEEE STANDARD
`
`COMPUTER GLOSSARIES (1990) (Ex. 2011, “IEEE Dictionary”). PO Resp.
`
`30.
`
`
`
`First, Patent Owner asserts that the construction in the Institution
`
`Decision does not comport with the broadest reasonable interpretation
`
`because it “improperly elevates a dictionary definition over an interpretation
`
`that arises from the ’698 Patent disclosure itself.” PO Resp. 30. According
`
`to Patent Owner, the IEEE Dictionary states that it is a useful reference for
`
`those in the computer field, but does not purport to be a definitive guide to
`
`the meaning of the words defined therein. See id. at 31 (citing Ex. 2013, 3).
`
`Patent Owner contends there are numerous other dictionaries that define
`
`“task” in a different way, and which demonstrate that a person of ordinary
`
`skill in the art’s understanding of “task” is broader than the IEEE Dictionary
`
`definition. See id. at 31–32 (citing Ex. 2012 ¶¶ 34–35; Ex. 2014; Ex. 2015,
`
`Ex. 2016). Patent Owner also asserts that Petitioner’s witness Dr. Pullen
`
`agrees that the construction in the Institution Decision is too narrow to be the
`
`broadest reasonable interpretation. See id. at 32–33 (quoting Ex. 2025,
`
`17:11–19, 19:20–20:1, 23:13–21; citing Ex. 2025, 22:1–6).
`
`
`
`Patent Owner also contends the construction in the Institution
`
`Decision is erroneous because it misapplies the IEEE Dictionary’s multiple
`
`definitions of the term “task.” See PO Resp. 30, 33–34. In particular, the
`
`IEEE Dictionary defines task as: “(1) A sequence of instructions treated as a
`
`basic unit of work by the supervisory program of an operation system. . . .
`
`(2) In software design, a software component that can operate in parallel
`
`
`
`17
`
`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`with other software components.” Ex. 2011, 13. According to Patent
`
`Owner, “[t]he IEEE Dictionary defines ‘task’ in two distinct and
`
`context-specific ways,” and “separates the two definitions with numbers
`
`‘(1)’ and ‘(2).’” PO Resp. 34 (quoting Ex. 2011, 13; citing Ex. 2013, 175).
`
`Patent Owner asserts that the IEEE Dictionary uses numbering when a term
`
`has more than one definition, and recognizes that terms may have different
`
`definitions depending on context. See id. at 34–35 (quoting Ex. 2013, 13;
`
`citing Ex. 2012 ¶¶ 40–42). Patent Owner contends “[t]he IEEE Dictionary
`
`treats the two definitions of ‘task’ separately in their usage; the second
`
`definition applies only ‘[i]n software design,’ which is omitted from the []
`
`construction” in the Institution Decision, and “the first definition may apply
`
`to all areas of electronics systems.” Id. at 35 (citing Ex. 2011, 13; Ex. 2012
`
`¶ 42). Patent Owner asserts there is nothing in the IEEE Dictionary to
`
`suggest the two definitions for “task” should be combined. See id. at 34
`
`(citing Ex. 2012 ¶¶ 36, 40–42). Patent Owner contends that the Board
`
`improperly took two alternative dictionary definitions and required both
`
`alternatives to be met by using the restrictive “and” instead of a permissive
`
`“or,” which conflicts with the IEEE Dictionary’s context-specific
`
`enumerated definitions. See id. at 34 (quoting Dec. 10; citing Dec. 18); id. at
`
`36 (citing Ex. 2012 ¶ 40).
`
`Patent Owner maintains that “task” should be construed as: “A set of
`
`instructions that may be executed by a processor to perform an operation.”
`
`PO Resp. 26; see Prelim. Resp. 43. Patent Owner contends the intrinsic
`
`
`
`5 Patent Owner refers to page number 198, as enumerated in the original
`document.
`
`18
`
`
`
`

`

`IPR2017-00580
`Patent 9,233,698 B2
`
`evidence and extrinsic evidence supports its construction. See PO Resp. 26–
`
`27 (citing Ex. 2012 ¶¶ 27–32). Patent Owner directs attention to the
`
`’698 Patent disclosure of the embodiment of Figure 2, which includes an
`
`operating system and application program software module instruction set
`
`that are accessed and executed by the processor and cause its respective
`
`control device to perform control operations over their respective safety
`
`critical subsystems. See id. (citing Ex. 1001, 6:5–12). According to Patent
`
`Owner, “[t]aking the implementation-specific details out of this description
`
`in the [’698 Patent S]pecification results in the following definition, which
`
`fairly reflects the broadest reasonable interpretation in light of the . . .
`
`[S]pecification: software module instruction sets that are accessed and
`
`executed by the processor to cause a device to perform operations.” Id. at 27
`
`(citing Ex. 2012 ¶ 29). Patent Owner also dir

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