Trials@uspto.gov
`571.272.7822
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`
`
`
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`Paper 9
`Entered: October 26, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION,
`Petitioner,
`
`v.
`
`SIEMENS INDUSTRY, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01270
`Patent 7,236,860 B2
`____________
`
`
`
`Before KRISTEN L. DROESCH, MEREDITH C. PETRAVICK, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`GOODSON, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`INTRODUCTION
`I.
`Petitioner filed a Petition (Paper 1, “Pet.”) requesting inter partes
`review of claims 1, 3, 5, 7, 10, 15, 16, 18, 20, and 25 of U.S. Patent No.
`7,236,860 B2 (Ex. 1001, “the ’860 patent”). Patent Owner filed a
`Preliminary Response to the Petition. Paper 8 (“Prelim. Resp.”). We have
`authority to determine whether to institute an inter partes review. See 35
`
`
`571.272.7822
`
`
`
`
`
`Paper 9
`Entered: October 26, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION,
`Petitioner,
`
`v.
`
`SIEMENS INDUSTRY, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01270
`Patent 7,236,860 B2
`____________
`
`
`
`Before KRISTEN L. DROESCH, MEREDITH C. PETRAVICK, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`GOODSON, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`INTRODUCTION
`I.
`Petitioner filed a Petition (Paper 1, “Pet.”) requesting inter partes
`review of claims 1, 3, 5, 7, 10, 15, 16, 18, 20, and 25 of U.S. Patent No.
`7,236,860 B2 (Ex. 1001, “the ’860 patent”). Patent Owner filed a
`Preliminary Response to the Petition. Paper 8 (“Prelim. Resp.”). We have
`authority to determine whether to institute an inter partes review. See 35
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`U.S.C. § 314; 37 C.F.R. § 42.4(a). Upon consideration of the Petition and
`the Preliminary Response, we do not institute an inter partes review of any
`claims of the ’860 patent.
`
`A. Related Matters
`Patent Owner is asserting the ’860 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. Pet. vi; Paper
`5, 1. In co-pending Case IPR2017-01263, Petitioner is challenging U.S.
`Patent No. 6,996,461, to which the ’860 patent claims priority as a
`continuation. Paper 5, 1; Ex. 1001, at [63].
`B. The ’860 Patent
`The ’860 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 ’860 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 1:18–
`49. To that end, the ’860 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
`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 1:54–62.
`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 4:9–15. In addition, “it is
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`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 4:16–20. The ’860
`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 continuously
`transmitting wayside devices. Id. at 5:34–41.
`C. Challenged Claims
`Petitioner challenges claims 1, 3, 5, 7, 10, 15, 16, 18, 20, and 25. Of
`these, claims 1 and 15 are independent claims. Claim 1 is reproduced
`below, with labels added by Petitioner for ease of reference:
`1.
`A system for controlling a train, the system comprising:
`
`[a] a control unit located on the train;
`
`[b] a database connected to the control unit, the database
`including position information for a plurality of configurable
`devices, the database further including an identifier for each of
`the configurable devices;
`
`[c] a positioning system connected to the control unit, the
`position system being operable to provide position information
`pertaining to the train to the control unit; and
`[c1]1 a transceiver connected to the control unit;
`[d] wherein the control unit is configured to perform the
`steps of:
`
`obtaining a position of the train from the positioning
`system;
`[e] identifying a configurable device in the database
`as a next configurable device the train will approach;
`
`
`1 Petitioner omitted, and therefore did not label, this limitation in the listing
`of claims in the Claim Appendix of the Petition. See Pet. 68.
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`[f] determining a proximity of the train to the next
`configurable device;
`[g] comparing the proximity to a threshold;
`[h] transmitting an interrogation message to the next
`configurable device when the proximity is below a
`threshold;
`[i] receiving a response to the interrogation
`message, the response including an identifier associated
`with a configurable device and a configuration of the
`configurable device;
`[j] allowing the train to pass the configurable device
`if the response is received within a first period of time, the
`identifier included in the response matches the identifier
`associated with the configurable device of interest, and the
`configuration included in the response is acceptable; and
`[k] taking corrective action otherwise.
`Ex. 1001, 5:57–6:24; see also Pet. 68–69 (reproducing claim with
`labels added).
`
`D. Alleged Grounds of Unpatentability
`Petitioner asserts the following three grounds of unpatentability:
`
`References
`
`Basis Claims Challenged
`
`Petit2 and Blesener3
`
`§ 103 1, 3, 5, 7, 10, 15, 16, 18, 20, and 25
`
`RSAC4 and Blesener
`
`§ 103 1, 3, 5, 7, 10, 15, 16, 18, 20, and 25
`
`RSAC, Blesener, and Petit § 103 1, 3, 5, 7, 10, 15, 16, 18, 20, and 25
`
`
`2 U.S. Patent No. 5,092,544, issued Mar. 3, 1992, Ex. 1008.
`3 Int’l Pub. No. WO 02/091013 A2, published Nov. 14, 2002, Ex. 1007.
`4 Railroad Safety Advisory Committee, Implementation of Positive Train
`Control Systems, Ex. 1005.
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`Pet. 11. In addition to the references listed above, Petitioner relies on the
`Declaration of Steven R. Ditmeyer. Ex. 1002.
`II. ANALYSIS
`A. Claim Construction
`We interpret the claims of an unexpired patent using the broadest
`reasonable interpretation in light of the specification of the patent. 37 C.F.R.
`§ 42.100(b); Cuozzo Speed Techs. LLC v. Lee, 136 S. Ct. 2131, 2144–46
`(2016). Under that standard, a claim term generally is given its ordinary and
`customary meaning, as would be understood by one of ordinary skill in the
`art in the context of the entire disclosure. See In re Translogic Tech., Inc.,
`504 F.3d 1249, 1257 (Fed. Cir. 2007). “[O]nly those terms need be
`construed that are in controversy, and only to the extent necessary to resolve
`the controversy.” Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795,
`803 (Fed. Cir. 1999)).
`1. “configurable device”
`The term “configurable device” appears in each of independent claims
`1 and 15, as well as many of their dependent claims.
`Petitioner proposes that this term should be construed to mean “any
`device along the wayside of a train track that is capable of being in at least
`two physical states.” Pet. 8. In support of that construction, Petitioner
`points to the Specification’s description of a switch or grade crossing gate as
`exemplary configurable devices in which the switch’s or gate’s position
`reflects the physical state of the device. Id. at 8 (citing Ex. 1001, 2:44–66,
`5:4–16).
`Patent Owner responds that the term should be construed to mean a
`“wayside device, such as a switch or crossing gate, that is capable of being
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`in at least two physical states.” Prelim. Resp. 11. Patent Owner argues that
`the intrinsic record supports its proposed construction, which is the same
`construction the parties agreed upon in the parallel District Court litigation.
`See id. (citing Ex. 1001, 1:47–49, 1:57–60, 2:64–66, 4:21–65, Ex. 2003, 28).
`The construction the parties agreed upon in their District Court case is
`consistent with the description in the Specification and does not appear to
`differ substantively from Petitioner’s proposal in this proceeding. For the
`purposes of this Decision, we construe “configurable device” to mean “a
`wayside device, such as a switch or crossing gate, that is capable of being in
`at least two physical states.”
`2. “transmitting . . . to the next configurable device”
`The phrase “transmitting . . . to the next configurable device” appears
`in each of independent claims 1 and 15.
`Petitioner proposes that this phrase should be construed to mean
`“sending a message from the controller on a train directly to a configurable
`device.” Pet. 10. Petitioner argues that although “[t]he claims on their face
`may not require the interrogation message to originate on the train,” direct
`communication between the train and the configurable devices is required in
`view of the prosecution history. Id. Specifically, Petitioner argues that
`during prosecution of the parent application to the ’860 patent, Patent Owner
`“differentiated the claimed invention from a prior art reference where a
`message was sent from the train to a WIU and on to a configurable device,
`as opposed to directly from the train to the configurable device.” Id. at 9
`(citing Ex. 1006, 116).
`Patent Owner responds that the phrase requires no construction, but
`that if a construction is adopted, the phrase should be construed as “sending
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`a message to the next configurable device.” Prelim. Resp. 12. Patent Owner
`disputes that the phrase requires direct transmission and excludes routing
`through intervening devices. Id. at 12–13. Patent Owner argues that the
`Specification does not limit the train’s interrogation of the device to being
`direct, and Patent Owner rebuts Petitioner’s characterization of the
`prosecution history. Id. at 13–14.
`We agree with Patent Owner that the prosecution history of the parent
`application does not support Petitioner’s argument that the phrase requires
`direct transmission. In the Response to Office Action on which Petitioner’s
`argument is based, Patent Owner (at that time, a patent applicant) contested
`a rejection that certain pending claims were anticipated by U.S. Patent No.
`5,950,966 to Hungate. See Ex. 1006, 116. Specifically, Patent Owner
`asserted that “Hungate discloses a system in which trains communicate with
`wayside controllers that pass along movement authorities to the train and, in
`some embodiments, issue incremental movement authorities for the train.”
`Id. Although Hungate disclosed the ability to accommodate switches, Patent
`Owner disputed the Examiner’s interpretation that the wayside controllers
`report the configuration of switches in response to an interrogation message.
`Id. Patent Owner argued that “the way in which [Hungate’s] system
`accommodates such switches is by having the switches communicate with
`the wayside controllers 20 rather than with any system on the train.” Id.
`Thus, the distinction Patent Owner drew is that in Hungate, “any
`communication of the status of the switch occurs between the switch and the
`wayside controllers, not between the train and the switch . . . .” Id. In other
`words, Patent Owner did not distinguish Hungate on the basis that it
`disclosed indirect rather than direct communication from the switch to the
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`train. What was absent from Hungate, according to Patent Owner’s remarks
`during prosecution, was any communication of the status of the switches
`being sent to the train.
`Accordingly, for purposes of this Decision, we determine that
`“transmitting . . . to a configurable device” does not require direct
`transmission.
`3. “interrogation message”
`The term “interrogation message” appears in each of independent
`claims 1 and 15, and in several dependent claims.
`Petitioner did not propose a construction for this term. Patent Owner
`proposes that the broadest reasonable interpretation of this term is “a
`targeted request for status information.” Prelim. Resp. 15. Patent Owner
`argues that other claim language and the description in the Specification
`supports its proposal. See id. at 15–16 (citing Ex. 1001, 1:53–62, 3:5–7,
`3:34–43, 3:56–4:20, 5:4–23, 5:34–41).
`The portions of the intrinsic record that Patent Owner cites support the
`view that an interrogation message is a request for status information. In
`particular, the Specification describes that the control module determines
`when the train is approaching a configurable device and “continuously
`interrogates the device to determine its status as the train approaches the
`device.” Ex. 1001, 1:59–60. However, based on the current record, we are
`not persuaded that the interrogation message must be targeted to a specific
`device. In this regard, we note the following description in the
`Specification:
`includes an
`interrogation
`the
`In
`some embodiments,
`identification number associated with the device 180. Since only
`the device corresponding to the identification number will
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`respond to the interrogation, this identification number is
`obtained from the map database 130. This avoids contention
`between multiple devices attempting
`to respond
`to
`the
`interrogation on the same frequency.
`Id. at 3:56–62. This description indicates that it is not a necessary or
`inherent feature of an interrogation message that it is targeted to a specific
`device, and that an interrogation message that would otherwise trigger
`responses from multiple devices can be avoided in “some embodiments” by
`including an identification number.
`
`For the purposes of this Decision, we construe “interrogation
`message” to mean “a request for status information.”
`B. Legal Principles
`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 non-obviousness such as “commercial
`success, long-felt but unsolved needs, failure of others, etc.” Id. at 17–18.
`“While the sequence of these questions might be reordered in any particular
`case,” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 407 (2007), the Federal
`Circuit has “repeatedly emphasized that an obviousness inquiry requires
`examination of all four Graham factors and that an obviousness
`determination can be made only after consideration of each factor.” Nike,
`Inc. v. Adidas AG, 812 F.3d 1326, 1335 (Fed. Cir. 2016).
`With respect to the fourth Graham factor, at this stage of the
`proceeding, the parties have not presented argument or evidence directed to
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`secondary considerations of nonobviousness. We now turn to a discussion
`of the first three Graham factors.
`C. 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 Equipment Co. v. U.S., 702 F.2d 1005, 1011 (Fed. Cir.
`1983).
`Petitioner contends that an ordinarily skilled artisan at the time of the
`invention of the ’860 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.” Pet. 7 (citing Ex. 1002 ¶¶ 42–44).
`Patent Owner “does not believe that any issue raised in the Petition turns on
`the level of ordinary skill in the art but reserves the right to address the
`requisite level of ordinary skill should inter partes review be instituted.”
`Prelim. Resp. 17. Based on the current record and for purposes of this
`Decision, we adopt Petitioner’s proposed definition of a person of ordinary
`skill in the art.
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`D. Summary of Cited References
`1. Summary of Petit
`Petit describes a system that controls the operation of crossing
`protection equipment for a highway crossing on a railroad. Ex. 1008, 1:58–
`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 8:4–8.
`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
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`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. Summary of 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 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 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.
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`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 12:16–18. “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” and data about the
`newly discovered crossing is placed in the locomotive’s database. Id. at
`12:20–25.
`3. Summary of 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
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`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
`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 is required to determine
`the “health” of a grade crossing while the train is still miles away from that
`crossing. Id. at 38. Specifically, ITCS verifies, “[t]hrough a self-diagnostic
`process, is the crossing warning system prepared to operate as intended? If
`so, the train continues to operate at maximum authorized speed. If not, the
`train must reduce to a predetermined speed.” Id. 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.
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`Petitioner argues that RSAC qualifies as prior art to the ’860 patent
`under pre-AIA § 102(b) due to its public accessibility by at least July 2001.
`Pet. 18–20.
`E. Obviousness Ground Based on Petit and Blesener
`Petitioner contends that claims 1, 3, 5, 7, 10, 15, 16, 18, 20, and 25
`would have been obvious based on the combination of Petit and Blesener.
`Pet. 24–48. Patent Owner presents several rebuttal arguments. See Prelim.
`Resp. 26–46.
`Looking first at claim 1, our analysis below focuses on limitations [b],
`[i], and [j]. Limitation [b] recites “a database connected to the control unit,
`the database including position information for a plurality of configurable
`devices, the database further including an identifier for each of the
`configurable devices.” Ex. 1001, 5:59–62 (emphasis added). Limitation [i]
`recites that the response to the interrogation message includes “an identifier
`associated with a configurable device and a configuration of the
`configurable device.” Id. at 6:13–16 (emphasis added). Limitation [j]
`recites “allowing the train to pass the configurable device if the response is
`received within a first period of time, the identifier included in the response
`matches the identifier associated with the configurable device of interest,
`and the configuration included in the response is acceptable.” Id. at 6:17–23
`(emphasis added).
`Regarding limitation [b], Petitioner points to Petit’s disclosure that the
`locomotive sends a message to the crossing including a crossing ID. Pet. 32
`(citing Ex. 1008, 5:12–14). Petitioner asserts that Blesener teaches a
`database that includes the location of crossings, and that “Blesener further
`teaches that when a plurality of crossings are in close proximity, it is
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`advantageous to include a unique identifier to distinguish devices from each
`other.” Id. at 32–33 (citing Ex. 1007, 10:22–25, 12:16–18, 26:24–25).
`Petitioner argues that the combination “includes the location of the next
`configurable device as taught by Blesener and the unique identity of the
`device as taught by both Petit and Blesener.” Id. at 33. Thus, Petitioner
`relies on Blesener’s location information as the claimed “position
`information” and Petit’s crossing ID or Blesener’s unique ID as the claimed
`“identifier.”
`With respect to limitations [i] and [j], Petitioner argues that “Petit
`teaches a response message indicating a component failure or
`communications failure, which leads to an application of brakes until the
`failure is resolved.” Pet. 37 (citing Ex. 1008, 5:63–6:8); see also id. at 38–
`39. Further, according to Petitioner, “Petit also suggests that the direct
`message includes, or is reflective of, an identity of the configurable device,”
`and that the content of the message is used to perform vital safety checks.
`Id. at 37 (citing Ex. 1008, claim 11; Ex. 1002 ¶¶ 53–54); see also id. at 39
`(citing Ex. 1008, claim 7, claim 9, 5:58–5:11). Petitioner argues that
`Blesener teaches that a controller receives messages indicating the status and
`location of configurable devices, and that unique identifiers can be used to
`distinguish devices that are in close proximity to one another. See id. at 37–
`38 (citing Ex. 1007, 12:22–23, 15:24–26, 26:24–25). According to
`Petitioner, “[t]he database of Blesener allows the system to compare
`incoming I.D. data with the I.D. data stored in the database.” Id. at 40.
`Patent Owner argues that Petitioner has not shown that either of the
`references disclose that the train receives a response to an interrogation
`message that includes an identifier as recited in limitation [i]. Prelim. Resp.
`
`16
`
`
`
`
`IPR2017-01270
`Patent 7,236,860 B2
`
`34–37. Patent Owner also contests the sufficiency of Petitioner’s showing
`that the cited combination teaches allowing the train to pass only if the
`identifier in the response matches that of the configurable device of interest,
`as recited in limitation [j]. Id. at 37–39.
`We agree with Patent Owner that Petitioner has not shown that the
`cited combination teaches an “identifier” that satisfies all of limitations [b],
`[i], and [j]. The portions of Petit on which Petitioner relies indicate that a
`crossing ID is included in messages going from the train to the crossing, and
`that the identity of the train is included in messages going from the crossing
`to the train. Ex. 1008, claim 7, claim 9, 5:12–14. But Petitioner does not
`point to any disclosure in Petit that a message from the crossing to the train
`includes a crossing ID. See Prelim. Resp. 34–35. In other words, Petit
`teaches including the message’s destination in the message, but does not
`teach including the message’s source in the message. Because Petit does not
`teach that the message from the crossing to the train includes the crossing
`ID, Petitioner has not shown that Petit’s crossing ID satisfies the
`requirements of an “identifier” as recited in limitation [i].
`Petitioner also cites Petit’s disclosure regarding safety checks for vital
`communications. See Pet. 39 (citing Ex. 1008, 4:58–5:11). In the cited
`excerpt of Petit, Petit teaches that “[t]he CPU message is the digital message
`containing a number of fields including a check bit or check value field to
`insure vital communications. Such vital communications checks are
`performed within the CPU.” Ex. 1008, 4:61–65. See also id. at 5:47–48
`(“These are vital messages containing check values which enable vital
`processing.”). Thus, Petit’s disclosure of the safety check performed on
`vital communications is that it uses a check bit or check value field.
`
`17
`
`
`
`
`IPR2017-01270
`Patent 7,236,860 B2
`
`Petitioner does not point to any disclosure relating the check bit or check
`value field to the crossing ID that Petitioner relies on as the claimed
`“identifier.” Petitioner does not explain adequately how Petit’s safety check
`for vital communications that uses a check bit or check value field discloses
`or suggests the subject matter of limitation [j].
`Petitioner’s assertion that “such a check includes insuring that the
`source of the response message matches the destination to which the
`interrogation message was sent” (Pet. 39) is unsupported by Petit. Petitioner
`cites to Mr. Ditmeyer’s declaration to support that assertion, but Mr.
`Ditmeyer does not cite any evidence for his testimony that Petit’s “vital
`check ensures that the origin, destination, and content of a message are
`accurate.” Ex. 1002 ¶ 52. Even accepting that testimony as correct, it still
`not show why an accuracy check along those lines discloses the process
`recited in limitation [j]. Mr. Ditmeyer further testifies that an ordinarily
`skilled artisan
`would understand that other messages [besides the message sent
`to the crossing and the message from the transponder] involved
`in Petit’s communication protocol could or would also contain a
`crossing I.D., for example, to provide an additional check at the
`train upon receipt of the crossing’s response. A person of skill
`in the art would understand that this could prevent a dangerous
`condition from occurring when, for example, a train believes a
`crossing is in a “safe” or down position and proceeds as such, but
`where the information received by the train in fact described a
`different crossing.
`Ex. 1002 ¶ 54. Again, Mr. Ditmeyer does not cite any disclosure in Petit, or
`any other evidence, in support of this testimony. Further, the testimony
`appears to use the disclosure of the ’860 patent as a guide. See Ex. 1001,
`4:16–20 (“Whether or not the interrogation of step 318 includes the device’s
`
`18
`
`
`
`
`IPR2017-01270
`Patent 7,236,860 B2
`
`identification number, it is preferable for the device’s response to include its
`identification as this allows for greater assurance that a response from some
`other source has not been mistaken as a response from the device.”).
`
`Petitioner’s arguments based on Blesener are also unpersuasive. With
`respect to limitation [i], Petitioner does not point to any evidence that the
`unique ID described in Blesener, which Petitioner equates to the claimed
`“identifier,” is included in a message to the train in response to an
`interrogation message. Blesener’s description of unique IDs on which
`Petitioner relies appears in a discussion of the framework for inter-crossing
`communications and states as follows:
`The concept is for every crossing in range of each other to have
`a specific time slot. A maximum number of crossing devices per
`area is first selected. In the preferred protocol, there is a limit of
`16 devices in any 300-meter range (see FIG. 13A). Clust
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