Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
` Paper: 56
` Entered: October 24, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION,
`Petitioner,
`
`v.
`
`SIEMENS MOBILITY, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01263
`Patent 6,996,461 B2
`____________
`
`
`
`Before KRISTEN L. DROESCH, MEREDITH C. PETRAVICK, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`GOODSON, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`I. INTRODUCTION
`
`Petitioner filed a Petition (Paper 2, “Pet.”) requesting inter partes
`
`review of U.S. Patent No. 6,996,461 B2 (Ex. 1001, “the ’461 patent”) on the
`
`following three grounds:
`
`
`
`References
`
`Basis
`
`Claims Challenged
`
`1. Petit1 and Blesener2
`
`2. RSAC3 and Blesener
`
`§ 103 1, 4–6, 14, 16, 17, 19, 28, 32, 35,
`42–44, and 48
`
`§ 103 1, 4–6, 14, 16, 17, 19, 28, 32, 35,
`42–44, and 48
`
`3. RSAC, Blesener, and Petit § 103 1, 4–6, 14, 16, 17, 19, 28, 32, 35,
`42–44, and 48
`
`See Pet. 11. Patent Owner filed a Preliminary Response to the Petition.
`
`Paper 8 (“Prelim. Resp.”).
`
`We initially instituted an inter partes review on a subset of the
`
`challenged claims and asserted grounds. See Paper 10 (“Dec. on Inst.”).
`
`Specifically, we determined based on the preliminary record that Petitioner
`
`had demonstrated a reasonable likelihood of prevailing in its challenge to
`
`claims 1, 4, 14, 16, 19, 28, 42–44, and 44 based on the combination of
`
`Ground 3. Id. at 24–35. We further determined that Petitioner had not
`
`demonstrated a reasonable likelihood of prevailing as to the other claims
`
`challenged in Ground 3, or as to the challenges in Grounds 1 and 2. Id. at
`
`15–35. Based on those determinations, and in accordance with the Board’s
`
`practice at that time, we instituted an inter partes review only as to claims 1,
`
`
`1 U.S. Patent No. 5,092,544, issued Mar. 3, 1992, Ex. 1008.
`2 Int’l Pub. No. WO 02/091013 A2, published Nov. 14, 2002, Ex. 1007.
`3 Railroad Safety Advisory Committee, Implementation of Positive Train
`Control Systems, Ex. 1005.
`
`
`
`
`2
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`4, 14, 16, 19, 28, 42–44, and 44 based on the combination of Ground 3. Id.
`
`at 35.
`
`Subsequently, pursuant to the holding in SAS Inst., Inc. v. Iancu, 138
`
`S.Ct. 1348, 1355–57 (2018), we modified our institution decision to institute
`
`on all of the challenged claims and all of the grounds presented in the
`
`Petition. Paper 21, 2. We also authorized supplemental briefing to permit
`
`the parties to address the newly added claims and grounds. Paper 23, 3–6.
`
`After briefing was completed and after the hearing, the parties filed a Joint
`
`Motion to Limit the Petition, which requested withdrawal of Ground 2 from
`
`consideration in this proceeding. Paper 50. We granted that Joint Motion.
`
`Paper 51. Thus, the challenges that remain at issue in this proceeding are
`
`Grounds 1 and 3 as listed in the table above.
`
`The merits briefing in this proceeding includes the Petition, a Patent
`
`Owner Response (Paper 22, “PO Resp.”), a Patent Owner Supplemental
`
`Response (Paper 28, “PO Supp. Resp.”), and a Petitioner Reply (Paper 33,
`
`“Reply”). Both parties provided expert testimony in support of their
`
`arguments: Petitioner retained Mr. Steven Ditmeyer (see Ex. 1002 ¶ 2), and
`
`Patent Owner retained Mr. John Loud (see Ex. 2004 ¶ 1).
`
`A transcript of the oral hearing is included in the record. Paper 54
`
`(“Tr.”). The record also includes short papers from the parties concerning
`
`an exhibit that Patent Owner submitted as supplemental information. See
`
`Paper 41; Paper 44. Patent Owner moved to exclude certain evidence,
`
`which motions we address in Section IV.
`
`We have jurisdiction under 35 U.S.C. § 6. Petitioner bears the burden
`
`of proving unpatentability of the challenged claims, and the burden of
`
`persuasion never shifts to Patent Owner. Dynamic Drinkware, LLC v. Nat’l
`
`
`
`
`3
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015). To prevail, Petitioner
`
`must prove unpatentability by a preponderance of the evidence. See
`
`35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). 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 any claim of the ’461 patent is
`
`unpatentable. See 35 U.S.C. § 316(e).
`
`A. Related Matters
`
`Patent Owner is asserting the ’461 patent against Petitioner in Siemens
`
`Industry, Inc. v. Westinghouse Air Brake Tech. Corp., Case No. 1-16-cv-
`
`00284 in the U.S. District Court for the District of Delaware (“the Parallel
`
`District Court Case”). Pet. vi; Paper 9, 2; Paper 17, 2. The parties also list
`
`the following Board proceedings as related matters:
`
` Case IPR2017-01270, concerning U.S. Patent No. 7,236,860;
`
` Case IPR2017-01533, concerning U.S. Patent No. 6,845,953; and
`
` Case IPR2017-01866, concerning U.S. Patent No. 7,036,774.
`
`Paper 9, 2; Paper 17, 1.
`
`B. The ’461 Patent
`
`The ’461 patent is entitled “Method and System for Ensuring that a
`
`Train Does Not Pass an Improperly Configured Device.” Ex. 1001, at [54].
`
`Consistent with that title, the Background of the ’461 patent indicates that
`
`the invention seeks to improve train safety by avoiding accidents due to
`
`improperly set switches or malfunctioning grade crossing gates. Id. at 1:13–
`
`44. To that end, the ’461 patent describes
`
`a computerized train control system in which a control module
`determines a position of a train using a positioning system such
`as a global positioning system (GPS), consults a database to
`
`
`
`
`4
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`
`determine when the train is approaching a configurable device
`such as a switch or grade crossing gate, continuously interrogates
`the device to determine its status as the train approaches the
`device, and forces an engineer/conductor to acknowledge any
`detected malfunction.
`
`Id. at 1:49–57.
`
`Repeatedly interrogating the device as the train approaches is
`
`beneficial because it permits detection of malfunctions or changes in
`
`configuration after the initial interrogation. Id. at 4:3–7. In addition, “it is
`
`preferable for the device’s response to include its identification number as
`
`this allows for greater assurance that a response from some other source has
`
`not been mistaken as a response from the device.” Id. at 4:10–14. The ’461
`
`patent also explains that an advantage of interrogating a configurable device
`
`as the train approaches is that the device need not transmit information when
`
`no trains are in the area, which saves power compared to wayside devices
`
`that continuously transmit status information. Id. at 5:28–35.
`
`C. Challenged Claims
`
`As noted above, Petitioner challenges claims 1, 4–6, 14, 16, 17, 19,
`
`28, 32, 35, 42–44, and 48.4 Of these, claims 1, 14, 28, and 44 are
`
`independent claims. Claim 1 is reproduced below, with labels added by
`
`Petitioner for ease of reference:
`
`
`4 The Petition references claim 25 in various places (e.g., Pet. 11, 24), but in
`the body of the Petition, the argument is directed to claim 35 (see id. at 45–
`46, 63). See Pet. 11. Since the preliminary stage of this proceeding, Patent
`Owner has recognized that Petitioner’s challenge is to claim 35, not claim
`25. See Prelim. Resp. 37, 42. As reflected in our Decision on Institution, we
`disregard the Petition’s references to claim 25 as typographical errors. See
`Dec. on Inst. 3, n.1.
`
`
`
`
`5
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`
`1.
`
`A system for controlling a train, the system comprising:
`
`
`
`[a] a control unit; and
`
`[b] a transceiver, the transceiver being located on the train
`
`and being in communication with the control unit;
`
`[c] wherein the control unit is configured to perform the
`
`steps of
`
`interrogation message
`transmitting an
`configurable device near the train;
`
`to a
`
`[d] listening for a response from the configurable
`device, the response including a configuration of the
`configurable device and an identifier of the device;
`
`[e] allowing the train to continue if a response with
`a correct configuration is received within a period of time;
`and
`
`[f] stopping the train otherwise;
`
`[g] wherein the control unit is further configured to
`perform the step of confirming that the identifier received in the
`response corresponds to the device to which the interrogation
`message was directed.
`
`Ex. 1001, 5:50–6:2; see also Pet. 70 (reproducing claim with labels added).
`
`II. CLAIM CONSTRUCTION
`
`In an inter partes review, claim terms in an unexpired patent are given
`
`their broadest reasonable construction in light of the specification of the
`
`patent in which they appear. 37 C.F.R. § 42.100(b); Cuozzo Speed Techs.
`
`LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (upholding the use of the
`
`broadest reasonable interpretation standard).
`
`A. “configurable device”
`
`The term “configurable device” appears in each of independent claims
`
`1, 14, 28, and 44, as well as many of their dependent claims. In our
`
`Decision on Institution, we construed this term to mean “a wayside device,
`
`
`
`
`6
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`such as a switch or crossing gate, that is capable of being in at least two
`
`physical states.” Dec. on Inst. 6. In doing so, we noted that the parties had
`
`agreed upon this construction in their Parallel District Court Case, and that it
`
`was consistent with the description in the Specification. Id. In the parties’
`
`briefing after institution, Patent Owner agreed with the construction in our
`
`Decision on Institution, and Petitioner did not address the construction of
`
`this term. PO Resp. 14; Reply 2. We maintain the construction set forth in
`
`our Decision on Institution for the reasons stated therein.
`
`B. “transmitting . . . to a configurable device”
`
`The phrase “transmitting . . . to a configurable device” appears in each
`
`of independent claims 1, 14, 28, and 44. In our Decision on Institution, we
`
`determined that this phrase does not require direct transmission. Dec. on
`
`Inst. 8. In arriving at that determination, we considered whether the
`
`prosecution history of the ’461 patent supports an understanding that the
`
`phrase requires direct transmission, but we concluded that it does not. Id. at
`
`6–8. In the parties’ briefing after institution, Patent Owner agreed with the
`
`construction in our Decision on Institution, and Petitioner did not address the
`
`construction of this phrase. PO Resp. 14; Reply 2. We maintain the
`
`construction set forth in our Decision on Institution for the reasons stated
`
`therein.
`
`C. “interrogation message”
`
`The term “interrogation message” appears in each of independent
`
`claims 1, 14, 28, and 44, and in several dependent claims. In our Decision
`
`on Institution, we construed the term to mean “a request for status
`
`information.” Dec. on Inst. 8. After institution, Patent Owner urged, as it
`
`had before institution, that we should construe the term as “a targeted
`
`
`
`
`7
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`request for status information.” PO Resp. 14–19. Patent Owner pointed out
`
`that in the Parallel District Court Case, the court’s construction of this term
`
`requires that the request is targeted. Id. at 15 n.2 (citing Ex. 2008, 10–12);
`
`see also Power Integrations, Inc. v. Lee, 797 F.3d 1318, 3126 (Fed. Cir.
`
`2015) (explaining that although the Board is not generally bound by a
`
`previous judicial interpretation of a disputed claim term, the Board should
`
`nevertheless assess whether it is consistent with the broadest reasonable
`
`construction of the term). In its Reply, Petitioner states that Patent Owner’s
`
`“proposed construction is acceptable.” Reply 2; see also Tr. 8:24–9:1
`
`(Petitioner’s counsel confirming that the parties agree on the construction of
`
`this term as a targeted request for status information). We will adopt the
`
`parties’ agreed-upon construction, which is also consistent with the
`
`construction in the Parallel District Court Case.
`
` Thus, we interpret “interrogation message” to mean “a targeted
`
`request for status information.”
`
`III. OBVIOUSNESS ANALYSIS
`
`A. Legal Standards
`
`In Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966), the
`
`Supreme Court set out a framework for assessing obviousness under § 103
`
`that requires consideration of four factors: (1) the “level of ordinary skill in
`
`the pertinent art,” (2) the “scope and content of the prior art,” (3) the
`
`“differences between the prior art and the claims at issue,” and
`
`(4) “secondary considerations” of nonobviousness such as “commercial
`
`success, long felt but unsolved needs, failure of others, etc.” Id. at 17–18;
`
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 407 (2007). In this case, the
`
`
`
`
`8
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`parties did not present any evidence relating to secondary considerations.
`
`We discuss the first three Graham factors below.
`
`B. Level of Ordinary Skill in the Art
`
`In determining the level of skill in the art, we consider the type of
`
`problems encountered in the art, the prior art solutions to those problems, the
`
`rapidity with which innovations are made, the sophistication of the
`
`technology, and the educational level of active workers in the field. Custom
`
`Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962 (Fed. Cir.
`
`1986); Orthopedic Equip. Co., Inc. v. United States, 702 F.2d 1005, 1011
`
`(Fed. Cir. 1983).
`
`In our Institution Decision, we adopted Petitioner’s proposal that an
`
`ordinarily skilled artisan at the time of the invention of the ’461 patent
`
`“would have had an undergraduate degree or the equivalent thereof and at
`
`least five (5) years of experience in train operations or train control systems”
`
`and “would have had knowledge of train control systems, train safety
`
`systems that include wayside systems, and train communication systems,
`
`and would have understood how to search available literature for relevant
`
`publications.” Dec. on Inst. 10 (quoting Pet. 7–8). Following institution,
`
`Patent Owner stated its agreement with this definition of the level of
`
`ordinary skill in the art. See PO Resp. 19. We maintain the definition of the
`
`level of ordinary skill in the art set forth in our Institution Decision for the
`
`reasons stated therein. See Dec. on Inst. 10–11.
`
`C. Summary of the Cited Prior Art References
`
`1. Petit
`
`Petit describes a system that controls the operation of crossing
`
`protection equipment for a highway crossing on a railroad. Ex. 1008, 1:58–
`
`
`
`
`9
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`62. In Petit’s system, a communications link is established between a train
`
`approaching the crossing and the crossing equipment. Id. at 2:4–6. The first
`
`message from the train is initiated when the locomotive passes a beacon
`
`transponder located beyond a safe braking distance for trains travelling
`
`toward the crossing. Id. at 2:32–37. The messages from the approaching
`
`train to the crossing equipment include fields for crossing ID, train speed,
`
`the train’s distance from the crossing, and other information. Id. at 2:10–12,
`
`4:58–67, 5:12–14. The messages from the crossing equipment to the train
`
`contain information as to the when the next message from the train is
`
`required, as well as minimum time for the train to reach the crossing. Id. at
`
`2:12–20, 7:41–57. The approaching train and the crossing equipment can
`
`interchange these messages multiple times, with the minimum time being
`
`repeatedly updated. Id. at [57], 7:64–66.
`
`When the minimum time has expired, the highway crossing gates are
`
`activated to drop. Id. at 7:67–8:2. Because the gates are activated when
`
`the train reaches the crossing, “[t]he time for the gates to be down is then
`
`minimized with the advantages of improved vehicular traffic flow over the
`
`crossing.” Id. at 8:5–8. Petit employs “vital communications logic which
`
`activates the protection equipment to its safe condition or sets alarms or
`
`brakes in the train in the event of errors or failures in the messages being
`
`handled in the crossing controller or in the train equipment. . . .” Id. at [57];
`
`see also id. at 1:62–68, 6:1–5, 6:58–65, 7:16–19.
`
`2. Blesener
`
`Blesener relates to an “inexpensive, low-power vehicle
`
`collision/crossing warning system that enables simple and decentralized
`
`installation, operation, and maintenance. . . .” Ex. 1007, 1:14–15. Blesener
`
`
`
`
`10
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`describes an embodiment in which a locomotive transmits every four
`
`seconds a beacon signal that contains the locomotive’s position, speed,
`
`direction, and heading. Id. at 11:4–7. “Any crossing can listen to any
`
`locomotive at all times, if the locomotive is within radio range of the
`
`crossing.” Id. at 11:8–9. Controller 20 at the crossing decides whether to
`
`activate the signal by deciding if the locomotive is approaching the crossing
`
`based on the locomotive’s location from the beacon. Id. at 11:10–15. “Once
`
`activation has occurred master controller 20 can optionally notify the
`
`locomotive that the crossing is activated.” Id. at 11:15–16. When the
`
`locomotive has passed, controller 20 deactivates the crossing. Id. at 11:20–
`
`21.
`
`Blesener’s system “uses a Smart Self Updating System (SSUS) to poll
`
`the crossing and share the latest systems information. In this way, as the
`
`locomotive moves down the track it is also updating itself and all crossings
`
`along the line with the latest system information.” Id. at 10:5–7. “Each
`
`locomotive SSUS contains a database of the status of all known crossings
`
`and each crossing controller has a copy of a smaller localized database.
`
`Each time a locomotive and crossing interact, the databases are compared
`
`and whoever has the latest information, passes this data to the other.” Id. at
`
`10:22–25.
`
`Blesener also describes a fail-safe for a broken crossing, which
`
`utilizes the GPS systems on board the locomotive and master controller 20.
`
`Id. at 12:14–19. Because “[t]his data allows the system to know about . . .
`
`the location of a crossing and . . . where the locomotive is, the system can
`
`cross check if it is approaching a crossing and has not gotten a confirmation
`
`that the crossing is activated.” Id. at 12:15–18. “Typically the locomotive
`
`
`
`
`11
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`does not need to know there is a crossing ahead because, if the crossing is
`
`working, the locomotive beacon will cause it to activate. When the crossing
`
`activates, it sends geo-location data to the locomotive” and data about the
`
`newly discovered crossing is placed in the locomotive’s database. Id. at
`
`12:20–25.
`
`3. RSAC
`
`RSAC is a report to the Federal Railroad Administrator describing
`
`“the status of efforts to develop, test, demonstrate and deploy Positive Train
`
`Control (PTC) systems.” Ex. 1005, vii. RSAC summarizes technological
`
`developments relating to PTC functions. See id. at 19–34. Of primary
`
`relevance to Petitioner’s challenges in this proceeding is RSAC’s description
`
`of the Incremental Train Control System (“ITCS”) (id. at 25–26, 38, C-4 to
`
`C-6).
`
`ITCS includes three major segments, a Wayside Equipment Segment,
`
`a Communications Segment, and a Locomotive Segment. Id. at 25. The
`
`Wayside Equipment Segment includes wayside interface units (WIUs),
`
`which monitor switch position and the status of highway rail grade
`
`crossings. Id. The Communications Segment includes a wide local area
`
`network (WLAN), which connects the WIUs to wayside interface unit
`
`servers (WIU-Ss) that broadcast digital data messages to trains. Id. “The
`
`WIU-S broadcasts (open loop) the status reported by the WIUs once every
`
`six seconds.” Id. at 26. The Locomotive Segment includes an on-board
`
`computer (OBC), which “stores a database of signal indications . . . and the
`
`locations of all devices with which it may be required to communicate.” Id.
`
`As the locomotive travels down the track,
`
`[t]he OBC establishes a session with each WIU-S when it enters
`its zone of coverage, verifies that it has an updated track database
`
`
`
`
`12
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`
`and expects to receive a WIU-S broadcast every six seconds. The
`OBC can miss two broadcasts without adverse [e]ffects but a
`missed third broadcast (18 to 20 seconds elapsed time) results in
`the OBC initiating an automatic brake application, stopping the
`train.
`
`Id.
`
`RSAC also describes that in ITCS, the OBC continually calculates
`
`expected time of arrival at the crossing, and when that time reaches 100
`
`seconds, the OBC transmits its estimated arrival time. Id. at C-5.
`
`The server receives the message, arms the crossing to prepare for
`activation, and sets a delay timer to hold off activation of the
`crossing until the estimated arrival time has reduced to around 40
`seconds. When all this is accomplished, the server then
`broadcasts the crossing status as armed and ready for hi-speed
`operation. When the delay time has expired, the server activates
`the crossing over the WLAN.
`
`Id.
`
`D. Obviousness Challenge Based on Petit and Blesener
`
`Petitioner contends that claims 1, 4–6, 14, 16, 17, 19, 28, 32, 35, 42–
`
`44, and 48 are unpatentable under 35 U.S.C. § 103(a) as obvious over Petit
`
`and Blesener. Pet. 24–48. Patent Owner disputes those contentions. PO
`
`Supp. Resp. 6–22.
`
`Our analysis focuses on limitation [c] of claim 1, which recites that
`
`the control unit is configured to “transmit[] an interrogation message to a
`
`configurable device near the train.” Ex. 1001, 5:57–58. Substantially the
`
`same limitation appears in each of the other independent claims challenged
`
`by Petitioner. See id. at 6:51–52 (claim 14); id. at 7:46–47 (claim 28); id. at
`
`8:66–67 (claim 44). Petitioner’s arguments concerning how the combination
`
`teaches this limitation in claims 14, 28, and 44 simply refer back to its
`
`arguments for the same limitation in claim 1. See Pet. 40, 42, 47; Reply 38.
`
`
`
`
`13
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`Similarly, Patent Owner groups all of the challenged claims together for the
`
`purposes of arguing why Petitioner has not shown that the combination
`
`teaches this limitation. See PO Supp. Resp. 9–12.
`
`As discussed above in Section II.C., we have adopted the parties’
`
`agreed construction that “interrogation message” means “a targeted request
`
`for status information.” We agree with Patent Owner that Petitioner has not
`
`established that the cited combination teaches a train transmitting a targeted
`
`request for status information to a configurable device near the train.
`
`Petitioner primarily relies on Petit as disclosing this limitation.
`
`Specifically, Petitioner points out that in Petit, the “first message from the
`
`train is initiated when the train locomotive passes a beacon, which is
`
`preferably a beacon transponder interrogated by locomotive-carried
`
`equipment.” Pet. 33 (quoting Ex. 1008, 2:31–34). It is this first message
`
`that the train sends to the crossing after passing the beacon that Petitioner
`
`points to as the “interrogation message.” Id. Petitioner contends that “this
`
`initial message . . . discloses the claimed ‘interrogation message’ because it
`
`is a request for status information.” Id. (citing Ex. 1002 ¶ 53).
`
`The record does not support Petitioner’s contention that this initial
`
`message in Petit is a request for status information from the crossing. The
`
`cited portion of Mr. Ditmeyer’s declaration concerns whether the train
`
`communicates directly with the crossing, without intervening
`
`communication equipment; it does not address whether the message from
`
`the train to the crossing includes a request for status information from the
`
`crossing. Ex. 1002 ¶ 53. The Petition itself quotes Petit’s description that
`
`train’s message to the crossing “giv[es] loco I.D., speed, direction of
`
`approach and distance from crossing.” Pet. 33 (quoting Ex. 1008, Fig. 5B).
`
`
`
`
`14
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`None of those items constitute a request for status information from the
`
`crossing, and Petitioner does not point to any disclosure in Petit indicating
`
`that this message additionally includes a request for status information.
`
`Our review of Petit leads us to agree with Patent Owner’s assertion,
`
`which is supported by citations to Petit’s disclosure and a detailed
`
`explanation from Mr. Loud, that the train’s message does not request status
`
`information from the crossing. PO Supp. Resp. 10 (citing Ex. 2016 ¶¶ 29–
`
`31). Petit summarizes that in its system, “messages from the approaching
`
`train contain information as to the speed of the approaching train and its
`
`distance from the crossing.” Ex. 1008, 2:10–12. When the crossing
`
`equipment receives the first message from the approaching train, it computes
`
`a minimum time for the crossing equipment to be disposed in its first state,
`
`in which highway traffic across the tracks is allowed. Id. at 2:2–4, 2:15–19;
`
`see also id. at 7:41–44. The crossing responds with an acknowledgement
`
`message that indicates the minimum time that was calculated. Id. at 7:53–
`
`56.
`
`The train and crossing then exchange additional messages, with
`
`“messages from the crossing equipment to the train contain[ing] information
`
`as to the time when transmission of a next successive message from the
`
`approaching train is required.” Id. at 2:12–15. With each interchange of
`
`messages between the train and the crossing, the minimum time is updated.
`
`Id. at 2:19–22; see also id. at 7:64–66. “The crossing equipment is
`
`conditioned into its second state [i.e., blocking highway traffic across the
`
`tracks] upon expiration of the latest updated minimum time.” Id. at 2:22–24;
`
`see also id. at 1:68–2:2, 7:67–8:3.
`
`
`
`
`15
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`
`This process minimizes the amount of time in which the crossing
`
`interferes with the flow of traffic across the crossing. Id. at 2:25–26; 8:5–8.
`
`Consistent with Petit’s goal of minimizing the time in which the gates are
`
`blocking traffic, “the safe condition of the warning devices will only occur
`
`when the train reaches the crossing.” Id. at 8:4–5. Thus, the system Petit
`
`describes does not include messages from the train requesting status
`
`information from the crossing or responsive messages from the crossing
`
`conveying status information. We find credible Mr. Loud’s testimony that
`
`“the Petit train neither requests the crossing’s configuration information, nor
`
`receives such configuration information in response to its activation
`
`message.” Ex. 2016 ¶ 29.
`
`In its Reply, Petitioner provides one short paragraph on this limitation.
`
`See Reply 38. Petitioner asserts that in Petit, the train’s message to the
`
`upcoming crossing contains a source identifier and a destination identifier.
`
`Id. (citing Ex. 1008, Fig. 5B, 5:12–14). Petitioner further asserts that “Mr.
`
`Loud confirmed that a message that causes the sending of a message with a
`
`configuration of a configurable device and an identifier of the configurable
`
`device is an interrogation message.” Id. (citing Ex. 1027, 178:1–2). Again,
`
`the record does not support this assertion. Petitioner has not shown that the
`
`train’s message in Petit causes the sending of a message from the crossing
`
`with the crossing’s configuration, and the cited portion of Mr. Loud’s
`
`deposition testimony includes no such confirmation:
`
`[Q.] So I think what I said -- I think I said was, is it true that as
`a result of the targeted message, the onboard receives status
`information about the configurable devices connected to the
`server?
`
`A. And I said no, because it’s not the result of it.
`
`
`
`
`16
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`Ex. 1027, 177:22–178:2. Moreover, in this portion of the deposition, Mr.
`
`Loud was being asked about the ITCS system in the RSAC reference, not
`
`Petit. Id. at 176:22–177:5. The RSAC reference is not a part of the
`
`combination in this ground.
`
`
`
`In an apparent backup position to its reliance on Petit for this
`
`limitation, the Petition includes a single sentence arguing that “Blesener
`
`also teaches that the control unit is configured to transmit an initial
`
`(interrogation) message to a configurable device near the train.” Pet. 33
`
`(citing Ex. 1007, 10:5–6). This argument is undeveloped and unpersuasive.
`
`The cited portion of Blesener describes that “[s]ystem 10 also uses a Smart
`
`Self Updating System (SSUS) to poll the crossing and share the latest
`
`systems information.” Ex. 1007, 10:5–6. As Mr. Loud points out, Blesener
`
`does not indicate that any “request for configuration status information is
`
`involved as part of that update.” Ex. 2004 ¶ 133. We agree with Patent
`
`Owner that Petitioner has not demonstrated that this disclosure indicates that
`
`the train sends a request for status information that is targeted to a particular
`
`device. PO Supp. Resp. 12; PO Resp. 46–49.
`
`Blesener describes that the train repeatedly sends a beacon signal,
`
`which is not directed to any particular crossing. Ex. 1007, 11:4–10.
`
`“Typically the locomotive does not need to know there is a crossing ahead
`
`because, if the crossing is working, the locomotive beacon will cause it to
`
`activate. When the crossing activates, it sends geo-location data to the
`
`locomotive, which causes the locomotive to ‘discover’ the presence of
`
`the crossing.” Id. at 12:20–24. The train can then “propagate this new
`
`knowledge” of the crossing throughout the system via SSUS by passing
`
`
`
`
`17
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`along this information to each crossing it encounters. Id. at 12:26. Thus, we
`
`are not persuaded that the operation of the SSUS in Blesener includes
`
`the train sending a targeted message to a particular device requesting status
`
`information. We credit Mr. Loud’s detailed testimony, which is supported
`
`with numerous citations to Blesener, as to why Blesener does not disclose
`
`the train transmitting an “interrogation message” under the construction we
`
`have adopted. See Ex. 2004 ¶¶ 131–138.
`
`
`
`Because Petitioner has not established that the cited combination
`
`teaches or suggests a train transmitting a targeted request for status
`
`information to a configurable device near the train, as required by each of
`
`the challenged claims, we determine that Petitioner has not carried its
`
`burden of demonstrating by a preponderance of the evidence that any of the
`
`challenged claims would have been obvious based on the combination of
`
`Petit and Blesener.
`
`E. Obviousness Challenge Based on RSAC, Blesener, and Petit
`
`Petitioner contends that claims 1, 4–6, 14, 16, 17, 19, 28, 32, 35, 42–
`
`44, and 48 are unpatentable under 35 U.S.C. § 103(a) as obvious over
`
`RSAC, Blesener, and Petit. Pet. 66–68.5 Patent Owner presents several
`
`
`5 Petitioner’s challenge in this ground builds on or modifies Ground 2 based
`on RSAC and Blesener (see Pet. 48–66), which predicate ground has been
`withdrawn from consideration as discussed above in Section I. Specifically,
`Petitioner relies in this ground on the same arguments presented in the
`RSAC and Blesener ground, except “modified to include Petit for the idea
`of removing the WIUs of RSAC, [such that] the same communications as
`described above in Ground 2 occurs with direct transmission from the train
`to the configurable device instead of through a WIU.” Pet. 66. Thus, the
`proposed combination in this ground is “identical to the one resulting
`from the combination of RSAC and Blesener as described in [Ground 2],
`except the communication between the train and the configurable device
`
`
`
`
`18
`
`

`

`IPR2017-01263
`Patent 6,996,461 B2
`
`arguments in rebuttal to Petitioner’s obviousness contentions in this ground.
`
`See PO Resp. 28–66. As in Section III.D., our analysis below focuses on the
`
`limitation reciting “transmitting an interrogation message to a configurable
`
`device near the train,” which appears in every challenged independent claim
`
`and is dispositive.
`
`Pet