Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 48
`Entered: August 21, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`ITRON NETWORKED SOLUTIONS, INC.,
`Petitioner,
`v.
`ACOUSTIC TECHNOLOGY, INC.,
`Patent Owner.
`_______________
`
`Case IPR2017-01030
`Patent 5,986,574
`_______________
`
`
`Before THU A. DANG, JOSIAH C. COCKS, and
`PATRICK M. BOUCHER, Administrative Patent Judges.
`
`DANG, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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`IPR2017-01030
`Patent 5,986,574
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`I.
`
`INTRODUCTION
`
`Background
`A.
`Silver Spring Networks, Inc.1 filed a Petition requesting an inter
`partes review of claims 1–3, 6, 8, 9, 11, 16, 17, 20, 23, 25, and 27–30 of
`U.S. Patent No. 5,986,574 (Ex. 1001, “the ’574 patent”). Paper 1 (“Pet.”).
`We instituted trial to determine whether claims 1–3, 6, 8, 9, 11, 16, 17, 20,
`23, 25, and 27–30 are unpatentable under 35 U.S.C. § 103 based on
`Argyroudis2 either alone or in combination with Selph.3 See Paper 9, 28
`(“Institution Decision” or “Inst. Dec.”). After institution of trial, Acoustic
`Technology, Inc. (“Patent Owner”), filed a Patent Owner Response. Paper
`25 (“PO Resp.”). Petitioner replied. Paper 33 (“Pet. Reply”).
`Petitioner filed a Motion to Exclude Evidence. Paper 37 (“Pet.
`Mot.”). Patent Owner filed an Opposition to Petitioner’s Motion to Exclude
`Evidence. Paper 41. Petitioner then replied to the Opposition to the Motion
`to Exclude Evidence. Paper 45.
`Oral argument was conducted on June 4, 2018. A transcript of that
`argument is entered in the record. See Paper 47 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6. This decision is a Final
`Written Decision under 35 U.S.C. § 318(a) as to the patentability of claims
`1–3, 6, 8, 9, 11, 16, 17, 20, 23, 25, and 27–30 of the ’574 patent. For the
`
`
`1 As a result of a reorganization, the petitioner in this proceeding changed
`from Silver Spring Networks, Inc. to Itron Networked Solutions, Inc. during
`the course of the proceeding. Paper 29. We refer collectively to these
`entities herein as “Petitioner.”
`2 U.S. 5,892,758 (issued Apr. 6, 1999) (“Argyroudis”; Ex. 1007).
`3 U.S. 4,804,957 (issued Feb. 14, 1989) (“Selph”; Ex. 1008).
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`reasons discussed below, we hold that Petitioner has demonstrated by a
`preponderance of the evidence that claims 1–3, 6, 8, 9, 11, 16, 17, 20, 23, 25,
`and 27–30 of the ’574 patent are unpatentable under 35 U.S.C. § 103(a).
`Furthermore, Petitioners’ Motion to Exclude Evidence is dismissed as
`
`moot.
`
`Related Proceedings
`B.
`The ’574 patent is the subject of a pending district court case
`captioned Acoustic Technology, Inc. v. Silver Spring Networks, Inc., No.
`2:16-cv-00831-JRG-RSP (E.D. Tex.). Pet. 1; Paper 5, 2. An inter partes
`review was instituted for claims 16, 17, 20, 23, 25, and 27–30 of the ’574
`patent (IPR2017-01031). Also, an inter partes review was instituted for
`claim 8 of U.S. Patent No. 6,509,841 (IPR2017-01024), which issued from a
`continuation application claiming priority to the ’574 patent.
`
`The ’574 Patent
`C.
`The ’574 patent issued November 16, 1999, from an application filed
`October 16, 1997. Ex. 1001, at [45] and [22]. The ’574 patent is directed to
`a communication system “suitable for use by a utility provider to monitor a
`plurality of metering devices from a remote location,” and describes a
`concentrator within the communication system operably connected to a
`control and a metering group for transmitting data between the control and
`the metering group. Id. at Abstract. Figure 1, reproduced below, illustrates
`an embodiment of a communication system.
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`Patent 5,986,574
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`Figure 1 depicts a communication system 10, comprising control means 12,
`relay means 14 in communication with the control means, and servicing
`means 16 in communication with the relay means, wherein, in one
`embodiment, communication system 10 is adapted for use in a utility
`provider for customer information. Id. at 2:23–37. In a preferred
`embodiment, each of servicing means 16 comprises a metering device
`located at the site of the customer of the utility provider, and includes means
`for measuring an amount of usage of a utility for the specific location to
`which metering device 16 is connected. Id. at 4:11–22. Metering devices 16
`are each connected via power lines to relay means 14. Id. at 4:33–35.
`Preferably, relay means 14 comprises a concentrator in the form of a
`meter and positioned at the location of a customer. Id. at 4:65–67. Figure 2,
`reproduced below, depicts an embodiment of concentrator meter 14 of
`Figure 1. Id. at 4:67–5:2.
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`As shown in Figure 2, concentrator meter 14 preferably includes LAN
`means 50 for receiving and transmitting data over the local area network,
`WAN means 52 for communicating data over the wide area network with
`control means 12 (Figure 1), and monitoring means 54 for measuring an
`amount of usage of a utility at a given location. Id. at 5:2–20. Concentrator
`meter 14 preferably also includes housing 30 having an inner cavity into
`which the components of concentrator meter 14 are mounted, such as LAN
`means 50, WAN means 52, and monitoring means 54. Id. at 5:33–41. Relay
`means 14, when in the form of concentrator meter 14, provides for greater
`efficiency since features of a meter and relay means between metering
`devices 16 and control means 12 (Figure 1) are combined into a single unit,
`which can be provided directly at a customer location. Id. at 7:13–19.
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`Patent 5,986,574
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`
`The Challenged Claims
`D.
`Independent claims 1 and 16 are illustrative of the challenged claims
`
`at issue. Claims 1 and 16 are reproduced below:
`
`A system for a utility provider to monitor a plurality
`1.
`of metering devices from a remote location comprising:
`control means for at least receiving data;
`a plurality of metering devices, with each said plurality of
`metering devices comprising means for transmitting data
`associated with an amount of usage of a utility, wherein said
`plurality of metering devices are arranged in a defined number of
`metering groups, with each said metering group comprising a
`selected number of plurality of metering devices operably
`connected together; and
`a defined number of concentrator, with each said
`concentrator being operably connected to the control means and
`one meter group, with each said concentrator being operably
`connected to one metering group by at least one power line,
`wherein each said concentrator comprises relay means for
`receiving data from one metering group over said at least one
`power line and transmitting data corresponding to the data
`received from said one metering group for receipt by said control
`means, to identify the amount of usage of a utility associated with
`each of the plurality of metering devices,
`wherein said concentrator further comprises a metering
`device and includes means for monitoring an amount of usage of
`a utility.
`
`
`relaying
`for
` A concentrator having means
`16.
`communication between a plurality of metering devices and at
`least one control station comprising;
`concentrator comprising a meter and means for monitoring
`an amount of usage of a medium;
`LAN means for receiving data from said plurality of
`metering devices over a local area network;
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`Patent 5,986,574
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`WAN means for transmitting data associated with both
`said plurality of metering devices and said monitoring means
`over a wide area network to said at least one control station; and
`a housing comprising a meter receiving said monitoring
`means, said LAN means and said WAN means.
`Ex. 1001, 7:29–54; 9:22–35.
`Instituted Grounds of Unpatentability
`E.
`We instituted trial on the following specific grounds (Pet. 18, 55):
`
`Reference
`
`Argyroudis4
`
`Basis
`
`§ 103
`
`Claim Challenged
`1–3, 6, 8, 9, 11, 23, 25, and
`27–30
`16, 17, and 20
`
`§ 103
`
`Argyroudis, Selph5
`
`Petitioner also relies on the declaration of Dr. Samir S. Soliman. Exs.
`1003, 2005. Patent Owner relies on, inter alia, the declarations of Laurence
`J. Colton, P.E., and Ray Bassiouni, Ph.D. Exs. 2006, 2015.
`
`II. ANALYSIS
`
`Claim Construction
`A.
`The ’574 patent expired on October 16, 2017. We accord claim terms
`in an expired patent their ordinary and customary meaning, as would be
`understood by a person of ordinary skill in the art at the time of the
`invention. See Cisco Sys., Inc. v. AIP Acquisition, LLC, Case IPR2014-
`00247, slip op. at 2 (PTAB July 10, 2014) (Paper 20) (citing Phillips v. AWH
`Corp., 415 F.3d 1303, 1313–1317 (Fed. Cir. 2005) (en banc)). In doing so,
`
`
`4 U.S. 5,892,758 (issued Apr. 6, 1999) (“Argyroudis”; Ex. 1007).
`5 U.S. 4,804,957 (issued Feb. 14, 1989) (“Selph”; Ex. 1008).
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`“we look principally to the intrinsic evidence of record, examining the claim
`language itself, the written description, and the prosecution history, if in
`evidence.” DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 469 F.3d
`1005, 1014 (Fed. Cir. 2006) (citing Phillips, 415 F.3d at 1312–1317).
`1.
`a “metering device”/“meter” (claims 1, 2, 6, 8, 16, 17,
`23, 29, 30)
`According to Petitioner, the Specification of the ’574 patent refers to
`“metering devices” which are depicted in Figure 1 as conventional utility
`meters. Pet. 10–11 (citing Ex. 1001, 4:33–50, FIG. 1). Relying on the
`declaration of Dr Soliman, Petitioner contends that “meter” or “metering
`device” should be construed as “a device that monitors the usage of a utility
`or medium.” Id. (citing Ex. 1003 ¶¶ 61–63).
`Patent Owner asserts that, “[m]eter” and “metering device” should be
`interpreted as “[a]ny utility meter capable of being installed at a customer
`location that measures the amount of utility consumption.” PO Resp. 24.
`According to Patent Owner, “meters measure, not monitor, the consumption
`of utility service,” and “utility meters must be installed at the customer
`location.” Id. According to Patent Owner, “[a] POSITA would understand
`the structure of the concentrator meter housing must be such that the base
`fits into a standard meter socket.”6 Id. at 25.
`We are unpersuaded by Patent Owner’s contention that the term
`“metering device” or “meter” is “limited to utility meters” that “must be
`installed at the customer location.” Id. at 24. Although the Specification
`indicates that “[i]n a presently preferred embodiment,” the servicing means
`
`
`6 “POSITA” is a short-form expression of a person of ordinary skill in the
`art.
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`16 comprises a metering device “located at the site of the customer of the
`utility provider,” and “each metering device 16 preferably includes means
`for measuring an amount of usage of a utility” (see Ex. 1001, 4:11–32), as
`Petitioner points out, “the ’574 patent discloses that a utility meter is just one
`example of the claimed meter” (Pet. Reply 6) and “whether the base of the
`housing fits into a standard meter socket has nothing to do with what a
`‘meter’ actually is.” Id. at 7.
`Based upon our consideration of the claims, written description, and
`the prosecution history (see DePuy Spine, Inc., 469 F.3d at 1014), we
`construe the term “metering device” or “meter” in accordance with its
`ordinary and customary meaning, as would be understood by a person of
`ordinary skill in the art at the time of the invention. See Cisco Sys., Inc.,
`Case IPR2014-00247, slip op. at 2. The Specification including the claim
`language, and the prosecution history do not compel any different
`conclusion. Thus, we conclude “metering device” or “meter” can be any
`device that measures a quantity, such as a device that includes “monitoring
`means” for “measuring an amount of usage of a utility” at a given location.
`Ex. 1001, 5:15–20. That is, the ordinary and customary meaning of the
`claims merely requires that the “metering device”/ “meter” be a device that
`measures a quantity of a medium.
`2.
`“means for monitoring an amount of usage” of a
`utility/medium (claims 1, 6, 16, 23)
`Petitioner contends the function associated with “means for
`
`monitoring” is specified in the claims: “monitoring” an amount “of usage of
`a utility” or “of usage of a medium.” Pet. 16. According to Petitioner,
`“monitoring means” is provided “for measuring an amount of usage at a
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`given location, similar to conventional incremental type metering devices.”
`Id. at 10–11 (citing Ex. 1001, 4:33–34, 5:15–20, FIG. 1). Thus, Petitioner
`contends the term should be interpreted as “incremental type metering
`devices and equivalents.” Id. at 16 (citing Ex. 1003 ¶ 69).
`Patent Owner asserts that “[m]eans for monitoring an amount of usage
`of a utility” is “a meter interface or module that translates meter readings
`into digital format that may be transmitted from the customer site to the
`central computer or control.” PO Resp. 26. According to Patent Owner,
`these interfaces or modules are essential components of an AMR system. Id.
`(citing Ex. 1017, 3–4). Patent Owner contends the Specification
`distinguishes between metering and monitoring functions. Id.
`In response, in Petitioner’s Reply, Petitioner contends “[t]he
`challenged claims do not require digital conversion, nor is such a function
`linked to the claimed “monitoring means” in the specification.” Pet. Reply
`9. Further, Petitioner contends the claim language “does not dictate that the
`meter and the means for monitoring are completely separate and distinct
`structures,” rather, “the language [‘concentrator comprising a meter and
`means for monitoring’] was added to distinguish over prior art involving a
`poletop concentrator that did not include a meter at all.” Id. at 10.
`As an initial matter, we agree with Petitioner that the use of “means”
`in connection with a “means for monitoring” gives rise to the presumption
`that it is a “mean-plus-function” limitation subject to 35 U.S.C. § 112. See
`Pet. 13. However, the ’574 patent does not disclose specific structure that
`corresponds to the claimed “monitoring” function, and particularly, none
`with digital conversion function. See Williamson v. Citrix Online, LLC, 792
`F.3d 1339, 1352 (Fed. Cir. 2015)(“Structure disclosed in the specification
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`qualifies as ‘corresponding structure’ if the intrinsic evidence clearly links or
`associates that structure to the function recited in the claim”). In that
`respect, the Specification of the ’574 patent generally describes a
`“monitoring means 54,” but provides no particular details of the structure of
`that component. In that regard, we are persuaded by Petitioner’s contention
`that “[t]he challenged claims do not require digital conversion, nor is such a
`function linked to the claimed ‘monitoring means’ in the specification.” Pet.
`Reply 9.
`Based upon our consideration of the claims, written description, and
`the prosecution history, we construe the term “monitoring” in accordance
`with its ordinary and customary meaning. The Specification, claims, and
`prosecution history do not compel any different conclusion. Thus, we
`construe “monitoring” as observing or checking a process or quantity, and
`conclude that means for “monitoring” an amount of usage can be a means
`that observes and checks the amount of usage, such as means “for measuring
`an amount of usage of a utility at a given location, similar to conventional
`incremental type metering devices.” Ex. 1001, 5:15–20. That is, “means for
`monitoring” is not limited to any “interface” or “module that translates meter
`readings into digital format,” as Patent Owner contends. PO Resp. 26.
`3.
`“servicing means” (claims 23, 25, 29, 30)
`Petitioner contends the function associated with “servicing means” is
`specified in the claims: “transmitting data to and receiving data from said
`control means via relay.” Pet. 15 (citing Ex. 1001, 10:13–19). Thus,
`Petitioner contends “servicing means” should be interpreted as “a means-
`plus-function limitation with a function of ‘transmitting data to and
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`receiving data from said control means via relay’” and “a corresponding
`structure of ‘a transmitter and receiver.’” Id. at 16 (citing Ex. 1003 ¶ 69).
`Patent Owner asserts that “[s]ervicing means” should be construed as
`a “device comprising a utility meter or other components to measure the
`usage of a medium or output.” PO Resp. 27. According to Patent Owner,
`“servicing means” is a generic term for a category of devices that perform
`the equivalent functions of meters or metering devices as claimed in the ’574
`patent, “the broadest reasonable (in fact only reasonable) construction of
`servicing means is a device that performs the equivalent of all of the
`functions of the meter claimed in the ’574 Patent.” Id. at 28. Patent Owner
`concedes that the ’574 patent refers to a preferred embodiment of the
`servicing means—“one in which monitoring means are encompassed
`therein” (id. at 28–29 (citing Ex. 1001, 4:6–11))—but contends that the ’574
`patent refers to the structure of a servicing means as generic measuring
`devices that encompass meters. Id.
`Here, we agree with Petitioner that the recitation of “servicing means”
`gives rise to the presumption that it is a means-plus-function claim
`limitation. See Pet. 13. The ’574 patent describes that “servicing means 16
`comprises means for transmitting and receiving data for communication with
`the control means 12 via relay means 14; for example, conventional
`transmitter and receiver units can be utilized for this purpose.” Ex. 1001,
`4:6–11. The ’574 patent also describes that “servicing means 16 comprises a
`metering device. . . .” Id. at 4:12–13. Thus, for purposes of this Decision,
`and based on the Specification and claims, and the prosecution history, we
`conclude that “servicing means” can be any structure, such as a conventional
`transmitter and receiver unit, that provides services and that comprises “at
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`least one meter” in communication with “relay means” for “transmitting data
`to and receiving data from” a “control means” via the relay. Id. at 10:15–19.
`4.
`“WAN means” for “transmitting data” (claims 3, 16, 17,
`20)
`Petitioner contends the ’574 patent expressly links the function of
`“transmitting data” to a conventional transmitter. Pet. 16–17 (citing Ex.
`1001, 4:6–11 (“means for transmitting and receiving data . . . for example,
`conventional transmitter and receiver units can be utilized for this purpose”),
`5:6–9 (“the concentrator meter 14 also preferably includes WAN means 52
`for communicating (receiving and transmitting) data over the wide area
`network”); Ex. 1003 ¶¶ 69–70). Thus, Petitioner contends “WAN means for
`transmitting” should be construed as a means-plus-function term with the
`function and structure specified in the claims as that of a “transmitter.” Id.
`Patent Owner asserts that a “WAN means for transmitting/receiving
`data” should be construed as “[a] conventional WAN radio capable of
`transmitting over public Wide Area Networks.” PO Resp. 29. According to
`Patent Owner, conventional WAN radios were well known in the art as of
`the filing date of the ’574 patent to communicate over intermediate cell
`towers and switching means of publicly available cell towers. Id. at 29–30
`(citing Ex. 2006 ¶ 65). Moreover, Patent Owner contends the Specification
`expressly states the “concentrator meter 14 also preferably includes WAN
`means 52 for communicating (receiving and transmitting) data over the wide
`area network with the control means 12 via the switching means 22,”
`wherein the item numbered 22 on Figure 1 is a publicly available cell tower.
`Id. (citing Ex. 1001, 5:7–11, FIG. 1).
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`We are unpersuaded by Patent Owner’s contention that a “WAN
`means for transmitting/receiving data” should be limited strictly to a
`conventional WAN “radio” capable of transmitting over “public” Wide Area
`Networks, to the exclusion of other types of transmitter devices beyond
`simply “radio.” Id. at 29. As Petitioner contends, “a conventional WAN
`radio is one type of transmitter/receiver that can be the WAN means but it is
`not the only structure,” and furthermore “[t]he claims do not include the
`proposed ‘public’ language.” Pet. Reply 14 (citation omitted).
`Here, as Petitioner points out, the recitation of “means for
`transmitting/receiving” gives rise to the presumption that it is a means-plus-
`function claim limitation. See Pet. 13. The ’574 patent describes that
`“concentrator meter 14 preferably includes WAN means 52 for
`communicating (receiving and transmitting) data over the wide area network
`with the control means 12 via the switching means 22.” Ex. 1001, 5:5–10.
`Thus, for purposes of this Decision, and based the Specification and claims,
`and the prosecution history, we construe the term “WAN means for
`transmitting data” in accordance with its ordinary and customary meaning,
`namely, as a device for transmitting data in a Wide Area Network (WAN).
`We conclude that “WAN means” can be any device “for communicating
`(receiving and transmitting) data over the wide area network.” See id. at
`5:3–10. That is, “WAN means” is neither limited to any “radio” nor must be
`“capable of transmitting over public” WAN, as Patent Owner contends. PO
`Resp. 29.
`
`5.
`“LAN means” for “receiving data” (claims 3, 16, 17, 20)
`Petitioner contends the ’574 patent expressly links the function of
`“receiving data” to a conventional receiver. Pet. 16–17 (citing Ex. 1001,
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`4:6–11 (“means for transmitting and receiving data . . . for example,
`conventional transmitter and receiver units can be utilized for this purpose”),
`5:3–10 (“means 50 for receiving and transmitting data over the local area
`network, such as a conventional transmitter and receiver”); Ex. 1003 ¶¶ 69–
`70). Thus, Petitioner contends “LAN means for receiving” should be
`construed as a means-plus-function term with the functions and structure
`specified in the claims as that of a “receiver.” Id.
`Patent Owner asserts that a “LAN means for receiving data from said
`plurality of metering devices” should be construed as “a receiver receiving
`data in a direct communication path from numerous meters.” PO Resp. 30.
`According to Patent Owner, the language “does not contemplate that the
`LAN means will receive data generated by a meter ‘through’ an independent
`device in an indirect communication path.” Id. Further, Patent Owner
`asserts that the claim limitation “also specifies that it receives data from a
`‘plurality’ of meters.’” Id. at 31. As such, the LAN receiver must be in
`direct communication paths with numerous meters. Id. at 30–31,
`We are unpersuaded by Patent Owner’s contentions that “LAN means
`for receiving data from said plurality of metering devices” should be
`construed as a receiver receiving data in a “direct communication path” from
`numerous meters. Id. As Petitioner contends, “the claims only require
`receipt of data from meters, not receipt of data directly from meters.” Pet.
`Reply 12.
`Here, as Petitioner points out, the recitation of “means for
`transmitting/receiving” gives rise to the presumption that it is a means-plus-
`function claim limitation. See Pet. 13. The ’574 patent describes that
`“concentrator meter 14 preferably includes LAN means 50 for receiving and
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`transmitting data over the local area network, such as a conventional
`transmitter and receiver.” Ex. 1001, 5:2–5. Thus, for purposes of this
`Decision, and based the Specification and claims, and the prosecution
`history, we construe the term “LAN means for receiving data” in accordance
`with its ordinary and customary meaning, namely, as a device for receiving
`data in a local area network (LAN). We conclude that “LAN means” can be
`any device “for receiving and transmitting data over the local area network.”
`Id. at 5:3–10. That is, “LAN means” is not limited to any “receiver” in a
`“direct communication paths” from numerous meters, as Patent Owner
`contends. PO Resp. 30–31.
`6.
`“housing comprising a meter receiving said monitoring
`means, said LAN means and said WAN means” (claim
`16)
`Patent Owner asserts that a “housing” should be construed as “a shell
`or casing completely encompassing components.” PO Resp. 31–32; see also
`id. at 34 (citing Ex. 2005, 91:2–16). According to Patent Owner, the
`“housing” as claimed “must encompass,” i.e., “must enclose . . . not merely
`cover” all of “a meter receiving said monitoring means, said LAN means
`and said WAN means.” Id. at 32 (citing Ex. 1001, 9:34–35).
`Further, Patent Owner asserts that “comprising” should be construed
`as “constituting or included within a device.” Id. at 34 (citing Crystal
`Semiconductor Corp. v. TriTech Microelectronics Intern., Inc., 246 F.3d
`1336, 1348 (Fed. Cir. 2001)). Thus, according to Patent Owner, a
`“[h]ousing comprising a meter receiving said monitoring means, said LAN
`means and said WAN means” should be construed as “a meter capable of
`measuring utility usage and being inserted into a standard meter socket and
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`into which components for a concentrator, monitor, LAN transceiver and
`WAN transceiver are incorporated.” Id. at 34–35.
`Patent Owner additionally asserts that, according to the prosecution
`history, “the Applicant clearly narrowed the claims to the concentrator,”
`wherein the Specification states that, “preferably the relay means comprises
`a concentrator in the form of a meter and positioned at the location of a
`customer.” Id. at 35 (citing Ex. 1001, 4:56–67). Thus, Patent Owner asserts
`“the unit into which the components are disposed is a meter.” Id.
`According to Patent Owner, “once claims are narrowed during prosecution
`to overcome a rejection, principles of prosecution estoppel preclude a patent
`owner from relying on the doctrine of the equivalents to claim infringement
`other than in accordance with the express terms of the claim as narrowed.”
`Id. at 35–36 (citing Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co.,
`Ltd., 535 U.S. 722 (2002)).
`In response, Petitioner contends that Patent Owner’s proposed
`“construction of ‘housing comprising’ . . . does not include the concept of a
`housing at all.” Pet. Reply 5. Petitioner contends that “nothing in the
`prosecution history requires that [the meter, monitoring means, WAN
`means, and LAN means] be a single physical device,” or that “the
`components are contained in a pre-existing meter housing.” Id. at 6.
`Although Petitioner concedes that “[t]he parties agree that a housing is an
`enclosure” (id. at 4 (citing PO Resp. 24, 34)), Petitioner disagrees that “the
`claimed meter must be ‘capable of being inserted into a standard meter
`socket.’” Id. at 5.
`Based on the Specification and claims, and the prosecution history, we
`construe the term “housing” in accordance with its ordinary and customary
`
`
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`IPR2017-01030
`Patent 5,986,574
`
`meaning, namely, as a structure that covers or encloses component(s). We
`conclude that “housing,” defined by the claims and consistent with the
`Specification, can be any structure that covers or encloses a meter that
`receives monitoring means, LAN means and WAN means, and is not limited
`to a structure being inserted into a standard meter socket. PO Resp. 34–35.7
`As to the remaining terms, Petitioner proposes constructions that we
`have considered. Patent Owner neither disputes those constructions nor
`proffers its own constructions of the terms. Because those proposed
`constructions comport with the claim-construction standard we apply for
`expired patents, we adopt most of Petitioner’s proposed constructions, as
`summarized in the following table:
`
`
`Construction
`“a device which concentrates, i.e.,
`collects and stores data.”8
`
`Claim Term
`“concentrator” (Claims 1, 6, 8, 11,
`16, 23)
`
`7 In reaching this construction, we have considered Patent Owner’s argument
`that “‘[c]omprising’ is a well-recognized term of art in patent law are part of
`a device.” Id. at 34 (citations omitted). We agree that Patent Owner’s
`statement is correct, but our adopted construction of “housing” is consistent
`with this well-established principle.
`8 This construction differs from Petitioner’s proposal of “a device which
`concentrates data from a group of meters and communicates data between
`those meters and a controller.” See Pet. 12. Our adopted construction
`instead parallels the construction of “concentrator” that we adopt in related
`IPR2017-01031. See Itron Networked Solutions, Inc. v. Acoustic
`Technology Inc., Case IPR2017-01031, slip op. at 12 (Paper 48) (PTAB).
`Although Patent Owner does not dispute Petitioner’s construction in this
`proceeding, Patent Owner does dispute it in the related proceeding, and we
`address Patent Owner’s arguments in that proceeding. We see no
`compelling reason to have different constructions of the same term in the
`two proceedings, and the distinction between our adopted construction and
`
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`IPR2017-01030
`Patent 5,986,574
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`
`“relay means for receiving data”
`(Claims 1–3) / “means for relaying
`communication” (Claims 16, 17,
`20) / “relay means” (Claims 23, 25,
`27–30)
`“control means” (Claims 1–3, 6, 11,
`23, 27, 28, 30)
`
`“means for transmitting data”
`(Claims 1–3, 6, 16, 17, 23, 29, 30)
`
`“means for receiving data” (Claims
`2, 3, 6, 16, 17, 23, 30)
`
`“communication means” (Claim 6)
`
`
`
`“a relay;” i.e., “a device that
`receives signals from one or more
`locations and then retransmits them
`to another location.” Pet. 13.
`
`“as a means-plus-function
`limitation with the function(s) of
`‘receiving data’ . . . and
`‘transmitting data’ . . . and a
`structure of ‘a computer,
`microprocessor or equivalent.’”
`Pet. 14 (citations omitted).
`“as a means-plus-function
`limitation with a function of
`‘transmitting data’ and a
`corresponding structure of ‘a
`transmitter.’” Pet. 14.
`“as a means-plus-function
`limitation with a function of
`‘receiving data’ and a
`corresponding structure of ‘a
`receiver.’” Pet. 15.
`“with the function of ‘transmitting
`and receiving data’ and the
`structure of ‘a transmitter and
`receiver.’” Pet. 18.
`
`B.
`
`Claims 1–3, 6, 8, 9, 11, 23, 25, and 27–30— Asserted
`Obviousness over Argyroudis
`Petitioner alleges that claims 1–3, 6, 8, 9, 11, 23, 25, and 27–30 are
`unpatentable over Argyroudis. Pet. 18–55.
`
`
`Petitioner’s proposed construction is ultimately immaterial to our
`conclusions herein.
`
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`IPR2017-01030
`Patent 5,986,574
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`
`1.
`Principles of Law
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`between the claimed subject matter and the prior art are such that the subject
`matter, as a whole, would have been obvious at the time the invention was
`made to a person having ordinary skill in the art to which said subject matter
`pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The
`question of obviousness is resolved on the basis of underlying factual
`determinations, including: (1) the scope and content of the prior art; (2) any
`differences between the claimed subject matter and the prior art; (3) the level
`of skill in the art; and (4) when in evidence, objective indicia of non-
`obviousness (i.e., secondary considerations). See Graham v. John Deere
`Co., 383 U.S. 1, 17–18 (1966). We analyze this asserted ground based on
`obviousness with the principles identified above in mind.
`2.
`Level of Skill in the Art
`The level of skill in the art is a factual determination that provides a
`primary guarantee of objectivity in an obviousness analysis. Al-Site Corp. v.
`VSI Int’l Inc., 174 F.3d 1308, 1324 (Fed. Cir. 1999) (citing Graham, 383
`U.S. at 17–18; Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718 (Fed. C