Trials@uspto.gov
`571-272-7822
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` Paper 52
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`Entered: January 11, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LUXSHARE PRECISION INDUSTRY CO., LTD.,
`Petitioner,
`
`v.
`
`BING XU PRECISION CO., LTD.,
`Patent Owner.
`____________
`
`Case IPR2017-01492
`Patent 8,758,044 B2
`____________
`
`
`
`Before DEBRA K. STEPHENS, BRYAN F. MOORE, and
`STACEY G. WHITE, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C § 318(a)
`
`
`
`
`571-272-7822
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` Paper 52
`
`Entered: January 11, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LUXSHARE PRECISION INDUSTRY CO., LTD.,
`Petitioner,
`
`v.
`
`BING XU PRECISION CO., LTD.,
`Patent Owner.
`____________
`
`Case IPR2017-01492
`Patent 8,758,044 B2
`____________
`
`
`
`Before DEBRA K. STEPHENS, BRYAN F. MOORE, and
`STACEY G. WHITE, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C § 318(a)
`
`
`
`
`
`IPR2017-01492
`Patent 8,758,044 B2
`
`Basis
`§ 102
`§ 103
`§ 103
`
`I. INTRODUCTION
`Luxshare Precision Industry Co., Ltd. (“Petitioner”) requests inter
`partes review of claims 1–20 of U.S. Patent No. 8,758,044 B2 (“the ’044
`Patent,” Ex. 1001) pursuant to 35 U.S.C. §§ 311 et seq. Paper 1 (“Pet.”).
`Bing Xu Precision Co., Ltd. (“Patent Owner”) filed a Preliminary Response.
`Paper 15 (“Prelim. Resp.”). In a January 12, 2018, Institution Decision, we
`determined that Petitioner had a reasonable likelihood of prevailing only on
`following grounds:
`
`Reference(s)
`Wu
`Wu
`Wu and the Array
`Interconnection Handbook
`Wu and Tang
`
`Instituted Claim(s)
`1
`1 and 3
`8
`
`§ 103
`
`4
`
`
`Paper 20, (“Inst. Dec.”). Accordingly, we instituted an inter partes review
`on those grounds only pursuant to 37 C.F.R. § 42.108. Inst. Dec. 34.
`Patent Owner filed a Patent Owner Response (Paper 23, “PO Resp.”)
`to which Petitioner filed a Reply (Paper 33, “Pet. Reply”). Patent Owner
`also requested authorization to file and, receiving authorization, filed a Sur-
`Reply. Papers 37, 41 (“PO Sur-Reply”).
`Subsequent to the Supreme Court’s decision in SAS Institute, Inc. v.
`Iancu, 138 S. Ct. 1348 (2018), we issued an Order, on May 1, 2018,
`modifying our Institution Decision to institute review of all challenged
`claims (1–20) and all grounds asserted in the Petition and instructed the
`parties to confer regarding any need for further briefing and changes to the
`schedule for trial. Paper 24 (“SAS Order”). Neither party requested
`additional briefing on the newly added claims.
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`Both parties requested a hearing for oral argument (Paper 47) and a
`prehearing conference (Paper 36), and a pre-hearing was held January 24,
`2018 and a hearing was held on October 9, 2018. See Paper 49 (“Tr.”).
`As discussed below, upon consideration of the Petition and Patent
`Owner Response, the testimony of Dr. Pradeep Lall for Petitioner (Ex. 1002)
`and Dr. Michael G. Pecht for Patent Owner (Ex. 2002), Petitioner has not
`shown by a preponderance of the evidence that claims 1–20 are
`unpatentable.
`
`A. Related Matters
`We are informed that the ’044 Patent is presently the subject of the
`following: Bing Xu Precision Co., Ltd. v. Acer Inc. and Acer America Corp.
`Case No. 5:16-cv-02491-EJD (N.D. Cal.). See Pet. 2. Petitioner also has
`filed IPR petitions, that are currently pending, challenging related U.S.
`Patents 8,512,071(IPR2017-01404) and 8,740,631 (IPR2017-01657).
`
`B. The ’044 Patent
`The ’044 Patent describes a connector assembly that allows easy
`inspection of the electrical connection between the PCB and the FFC. Ex.
`1001, 1:47–52, 1:66–2:2. Figure 3 of the ’044 Patent is reproduced below.
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`Figure 3 depicts an exploded diagram of the connector components.
`The connector assembly includes FFC 50, terminals 20, 30, PCB 40, and
`insulated housing 10. Figure 7, reproduced below, shows a side view of the
`connector.
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`Figure 7, above, shows the connector includes a design where the
`PCB includes two sides where a rear facing side faces away from the
`insulated housing 10. Ex. 1001, Fig. 7.
`
`C. Illustrative Claim
`Independent claim 1, reproduced below, is illustrative of the claimed
`subject matter:
`1. An electrical connector assembly comprising:
`an insulating housing having a plurality of grooves, a
`plurality of data terminal holes, and a plurality of power
`terminal holes;
`a PCB (printed circuit board) having a plurality of first
`soldering holes, a plurality of second soldering holes, a plurality
`of first contacts electrically connected to the first soldering
`holes, and a plurality of second contacts electrically connected
`to the second soldering holes;
`a plurality of power terminals fastened in the grooves of
`the insulating housing respectively, the power terminals each
`having a mating portion inserted into each of the power
`terminal holes, and the power terminals each having a soldering
`portion soldered in each of the first soldering holes;
`a plurality of data terminals fastened in the grooves of the
`insulating housing respectively, the data terminals each having
`a mating portion inserted into each of the data terminal holes,
`and the data terminals each having a soldering portion soldered
`in each of the second soldering holes;
`an FFC (flexible flat cable) having an insulating layer for
`enclosing a plurality of conductors; and
`wherein exposed ends of the conductors are electrically
`connected to the first contacts and the second contacts.
`
`
`Id. at 8:4–28.
`
`D. Instituted Grounds of Unpatentability
`Petitioner asserts that claims 1–20 are unpatentable based on the
`following grounds (Pet. 15–63):
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`Reference(s)
`Wu1
`Wu
`Wu and the Handbook2
`Wu and Tang4
`Wu, Green,5 and De Lollis6
`Wu and Brennan7
`Wu, SATA Standard,8 and Su9
`
`
`Basis Claim(s) challenged
`§ 102
`1 and 3
`§ 103
`1–3, 8–10, 12, 13, and 15
`§ 103
`2, 8, 9, and 133
`§ 103
`4, 5, 16, and 18
`§ 103
`14
`§ 103
`17
`§ 103
`6, 7, 11, 19, and 20
`
`II. DISCUSSION
`A. Level of Skill
`Petitioner asserts the level of skill includes, inter alia, “four years of
`experience or a Master’s degree with two years of experience in the field of
`mechanical engineering and/or electrical engineering.” Pet. 8 (citing Ex.
`1002 ¶ 34). Patent Owner asserts the level of skill would include a
`Bachelor’s degree (or the equivalent) in electrical engineering, and a few
`months of experience working with connectors. PO Resp. 5 (citing
`
`
`1 US Patent No. 7,563,108 B1, issued Jul. 21, 2009 (“Wu,” Ex. 1003).
`2 Puttlitz et al, THE AREA ARRAY INTERCONNECTION HANDBOOK, 2001
`(“Handbook”, Ex. 1004).
`3 While Petitioner argues Claim 13 under this ground, Petitioner instead lists
`Claim 12 in the summary of invalidity positions (Pet. 14–15). We consider
`this to be a clerical error, and it does not change our analysis.
`4 US Patent No. 6,152,765, issued Nov. 28, 2000 (“Tang,” Ex. 1005).
`5 US Patent No. 5,501,612, issued Mar. 26, 1996 (“Green,” Ex. 1006).
`6 De Lollis, THE USE OF ADHESIVES AND SEALANTS IN ELECTRONICS, IEEE
`TRANSACTIONS ON PARTS, MATERIALS AND PACKAGING, Vol.
`PMP-1, No. 3, Dec. 1965 (“De Lollis,” Ex. 1007).
`7 US Patent No. 5,941,725, issued Aug. 24, 1999 (“Brennan,” Ex. 1008).
`8 SERIAL ATA INTERNATIONAL ORGANIZATION: SERIAL ATA REVISION 2.6,
`2007 (“SATA Standard,” Ex. 1009).
`9 US Patent No. 7,803,009 B2, issued Sep. 28, 2010 (“Su,” Ex. 1010).
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`Ex. 2002 ¶¶ 40–42). Patent Owner argues that the difference in the asserted
`level of skill would result in not appreciating “educational level of active
`workers in the field” and, among other things, the fact the Dr. Lall has
`published in technical areas other than connectors is reason to consider Dr.
`Pecht as higher authority over Dr. Lall. Id. at 5–7. Dr. Lall acknowledges
`that “a less skilled definition is possible for a [PHOSITA] of the ’044
`Patent.” Ex. 1002 ¶ 35. Patent Owner asserts “[t]he prior art simply does not
`show technology so complex as to require a Master’s degree or extensive
`experience. Ex. 2008 at ¶ 42.” PO Resp. 6. We agree with Patent Owner
`that the level of skill is not particularly complex in this case.
`Nevertheless, we find that nothing in the record suggests these
`alternative skill levels would lead to a different interpretation of the evidence
`necessary to resolve the issues in this case or affect the credibility of either
`expert. Thus, while for clarity we adopt Patent Owner’s articulation of the
`level of skill, we find the level of ordinary skill in the art is reflected by the
`prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
`Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re
`Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`
`B. Expert Qualifications
`Petitioner asserts that Dr. Pecht in not a credible expert witness
`because had difficulty remembering facts regarding his professional
`association with Dr. Lall and the circumstances under which he
`recommended Dr. Lall to Petitioner. Pet. Reply 3–4. Specifically, Petitioner
`asserts
`Dr. Pecht’s selective memory regarding Dr. Lall, his belief that
`the claims of the ’044 Patent were obvious [based on phone
`conversations with counsel], and other topics regarding which an
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`expert in this field should have knowledge—such as how FFCs
`were traditionally connected to PCBs ([Ex. 1021] at 78:4-82:9,
`97:23-98:21)—make his
`testimony
`in
`this proceeding
`completely unreliable.
`
`
`Id.
`We find that his memory regarding his work with Dr. Lall or
`
`negotiations leading to his or Dr. Lall’s retention in this matter is irrelevant
`to his opinion on technical issues in this case. Additionally, we do not
`consider Petitioner’s assertions regarding uncorroborated phone
`conversations. Finally, in reviewing the deposition transcript, we find that
`Dr. Pecht’s inability to answer questions related to his personal knowledge
`of the pitch of connections prior to 2011 is not disqualifying. Ex. 1021,
`78:4-82:9, 97:23-98:21. If we considered this part of his deposition, we
`would consider it in giving weight to his testimony regarding claim
`limitations to pitch. Because we find claim 1 is not shown to be
`unpatentable, the issue of pitch is moot.
`
`FRE 702 permits expert testimony if a witness is qualified, “by [his or
`her] knowledge, skill, experience, training, or education,” and if his or her
`testimony “will help the trier of fact to understand the evidence or to
`determine a fact at issue,” inter alia. In determining who is “qualified in the
`pertinent art” under FRE 702, we need not find a complete overlap between
`the witness's technical qualifications and the problem confronting the
`inventor or the field of endeavor for a witness to qualify as an expert. SEB
`S.A. v. Montgomery Ward & Co., Inc., 594 F.3d 1360, 1372-73 (Fed. Cir.
`2010) (upholding admission of the testimony of an expert who admittedly
`lacked expertise in the design of the patented invention, but had experience
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`with materials selected for use in the invention). Overall, we find Dr. Pecht
`qualified to testify.
`
`C. Claim Construction
`In an inter partes review, we construe claim terms in an unexpired
`patent according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b).
`Consistent with the broadest reasonable construction, claim terms are
`presumed to have their ordinary and customary meaning as understood by a
`person of ordinary skill in the art in the context of the entire patent
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007).
`
`1. FFC (flexible flat cable) – all claims
`All claims contain a limitation to “an FFC (flexible flat cable) having
`an insulating layer for enclosing a plurality of conductors.” Both parties
`offer constructions of this phrase.
`a. Petitioner’s Proposed Construction
`Petitioner asserts “[u]nder the BRI standard, in the context of the
`specification of the ’044 Patent and its claims, the term ‘FFC’ means a
`flexible flat cable that has a consolidated/unitary construction for housing
`both power and data conductor wires in one cable.” Pet. 10. Petitioner cites
`to the Specification which states “[p]referably, the provision of the FFC 50
`can save the production cost due to its unitary construction and eliminating
`cable management equipment and the step of cable managing processes.
`This is one of the important features of the invention.” Pet. 10; Ex. 1001,
`4:27–31. We agree that the concept of unitary construction should be
`incorporated into the construction, but we do not find evidentiary support for
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`the inclusion of the broader term “consolidated” as suggested by the
`Petitioner
`Petitioner also asserts that
`the ’044 Patent describes the FFC as ‘compris[ing] a plurality of
`first conductors 55 [i.e., power conductors], a plurality of second
`conductors 56 [i.e., data conductors], and an insulating layer 501
`for enclosing most portions of the first and second conductors[.]’
`([Ex. 1001] at 3:66–4:2; see also id. at 4:6–67 (indicating that the
`first conductors are for power and the second are for data).).
`
`Pet. 10. Nevertheless, the claim explicitly requires “an FFC (flexible flat
`cable) having an insulating layer for enclosing a plurality of conductors”;
`thus there is no need to add this limitation to the construction of FFC.
`Finally, FFC stands for “flexible flat cable” so stating that an FFC is a
`flexible flat cable is at best redundant. See PO Sur-Reply 10–11.
`b. Patent Owner’s Construction
`Patent Owner urges that FFC be construed as “a cable with flat
`conductors that are arranged along the same plane and that arrangement is
`laminated with a pliable material.” PO Resp. 8. Patent Owner also suggests
`that the phrase “laminated with a pliable material” means a single layer of
`insulation. Id. at 11–12 (contrasting FFCs from traditional jacketed cables
`with at least two layers of insulation), 28 (“the FFC required by Claim 1 is
`
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`not a traditional cable with individually wrapped round conductors.”)10
`Below, we examine Patent Owner’s arguments regarding its new
`construction.
`
`c. Patent Owner – “an insulating layer”
`Specification
`Patent Owner asserts “the FFC required by Claim 1 is not a traditional
`cable with individually wrapped round conductors,” but rather has a single
`layer of insulation. PO Resp. 28; PO Sur-Reply 5. Patent Owner argues that
`at least Figure 11 shows the FFC bending at sharp angles that Patent Owner
`asserts “would not be possible with the round conductors, jackets, shields,
`and additional insulation in a traditional jacketed cable.” PO Resp. 15.
`Nevertheless, Petitioner asserts “it is improper to import features from a
`preferred embodiment [in the Figures].” Pet. Reply 4. Petitioner also argues
`that “Dr. Pecht necessarily admitted that a jacketed cable, which he asserts is
`the type of cable disclosed in Wu, can be flexible.” Pet. Reply 10 (citing Ex.
`1023, 139:17–24).
`
`
`10 Petitioner acknowledges this claim construction argument in its Reply and
`presents extrinsic evidence that FFCs have a “jacket.” Pet. Reply 6–8.
`Petitioner, however, subsequently argues “[b]ecause even Patent Owner’s
`proposed construction of FFC does not include the negative limitation that a
`FFC cannot have a jacket, the latter argument fails (and, in any case, is
`completely unsupported by any intrinsic or extrinsic evidence).” Id. at 9.
`Petitioner also stated at the oral hearing that this claim construction position
`“appears to be a new argument,” but did not lodge any objection to this
`argument. To the extent Petitioner is asserting this argument was untimely
`presented we disagree. We determine this argument was properly presented
`in Patent Owner’s Response. Additionally, Petitioner did not move to strike
`this argument and thus has waived any argument regarding the timing of the
`argument.
`
`11
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`To show the claims should be limited to a single insulating layer,
`Patent Owner relies on the claim’s recitation of “an” insulating layer and six
`separate passages from the Specification describing an FFC as “having an
`insulating layer for enclosing a plurality of first conductors and a plurality of
`second conductors.” PO Sur-Reply 5–6 (citing Ex. 1001, 2:16–19, 2:40–43,
`2:64–67, claims 1, 8, and 12 (emphasis added)). Patent Owner also relies on
`two additional sections of the Specification that explain “[t]he FFC 50
`comprises a plurality of first conductors 55 and a plurality of second
`conductors 56, and an insulating layer 501 for enclosing most portions of the
`first and second conductors 55, 56 . . .” Id. at 4-5 (citing Ex. 1001, 3:66–4:2,
`6:21–24).
`Nevertheless, claims 1, 8 and 12 use the transitional phrase
`“comprising.” An indefinite article, such as “an,” in patent parlance means
`“one or more” in open-ended claims containing the transitional phrase
`“comprising.” KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356
`(Fed. Cir. 2000). Therefore, we disagree that the claims are limited to a
`single insulating layer based solely on the use of the indefinite article “an.”
`Nonetheless, intrinsic evidence can indicate that a patentee intended to limit
`a claim to one and only one. See TiVo, Inc. v. EchoStar Commc’ns Corp.,
`516 F.3d 1290, 1303–04 (Fed. Cir. 2008); Insituform Technologies, Inc. v.
`Cat Contracting, Inc., 99 F.3d 1098 (Fed. Cir. 1996); North American
`Vaccine, Inc. v. American Cyanamid Co., 7 F.3d 1571 (Fed. Cir. 1993).
`“While the term ‘comprising’ in a claim preamble may create a
`presumption that a list of claim elements is nonexclusive, it ‘does not reach
`into each [limitation] to render every word and phrase therein open-ended.’”
`Promega Corp. v. Life Techs. Corp., 773 F.3d 1338, 1350 (Fed. Cir. 2014)
`
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`(quoting Dippin' Dots, Inc. v. Mosey, 476 F.3d 1337, 1343 (Fed. Cir. 2007)).
`We also determine that although the overall claim recites “comprising,” that
`the FFC limitation itself does not use the word “comprising” may suggest
`that limitation was meant to be closed ended. TiVo, 516 F.3d at 1304.
`Patent Owner asserts that the Specification emphasizes “elimination
`of cable management equipment and elimination of cable managing
`processes.” PO Sur-Reply 5. According to Patent Owner, in the background
`section of the Specification, the inventors distinguish the connector
`assembly of the ’044 Patent from the connector of the ’459 Patent (Ex. 1011,
`“Chen”) by noting the drawbacks of special cable management equipment
`and processes required to solder cable 5 to contacts 2. Ex. 1001, 1:30–34.
`In Chen, a traditional round wire with a jacket and individually insulated
`conductors is connected to the contacts 2 as shown in Figure 2, reproduced
`in excerpted form below.
`
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`Figure 2 (excerpt) of Chen, shown above, presents a round wire with
`
`jacketed round conductors. Ex. 1011, Fig. 3. Patent Owner asserts that, to
`overcome these drawbacks, the inventors disclose the novel idea of using an
`FFC, which has a single insulating layer, to yield a much more cost effective
`and easier to manufacture connector by “eliminating cable management
`equipment and the step of cable managing processes.” PO Sur-Reply 6
`(citing Ex. 1001, 4:28–31). We find that Chen has a consolidated structure
`in which the round individually insulated wires are encased in a round
`insulation layer but it is not unitary because it has multiple individual layers
`of insulation.
`The Specification also states specifically that the “unitary
`construction” of an FFC “is one of the important features of the invention”
`(Ex. 1001, 4:30–31) (emphasis added). Unitary generally means one piece
`and is narrower than consolidated or integrated. PO Sur-Reply. 6–7; In re
`Morris (finding “integrated” is broader than unitary, i.e. one piece under
`broadest reasonable construction).
`Patent Owner suggests that Petitioner’s declarant Dr. Lall “admits that
`the statement ‘having an insulating layer for enclosing a plurality of first
`conductors and a plurality of second conductors’ means that you have a
`single insulating layer for at least four separate conductors. Ex. 2026, 74:13-
`75:3, 78:23-79:21, 80:9-17.” Id. Nevertheless, we are persuaded that a fair
`reading of the cited testimony is that Dr. Lall maintains that a “conductor”
`may be defined as wire that is individually insulated such that the “single”
`insulating layer could actually be a layer applied to at least 4 conductors, i.e.
`individually insulated wires by his definition. Ex. 2026, 74:13–75:3, 78:23–
`79:21, 80:9–86:6. Dr. Lall does admit that the “layer” mentioned in the
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`Specification is a layer applied to uninsulated conductors. Id. at 84:9–19.
`Dr. Lall additionally admits that it is “possible” to make a wire as the FFC
`shown in “Figure 6 on [] page 21 of the 1404 Exhibit 1022.” Id. at 79:9–17.
`Page 21 of Exhibit 1022 shows an excerpt of Exhibit 2009 at Figure 6 which
`is a flat cable with flat rectangular conductors with a single laminated cover.
`Ex. 2009, 10.
`The ’044 Patent also describes the FFC as having “unitary
`construction,” and, according to Patent Owner, unlike individually insulated
`round wires in a jacket, which require “multi-phase (non-unitary)
`construction” because each round wire must be insulated prior to being
`placed together within a jacket. PO Sur-Reply 6–7 (citing Ex. 1001, 4:27–
`28). According to Patent Owner, insulating wires prior to placing them
`together within a jacket requires separate construction steps and equipment.
`Id. at 7. Therefore, according to Patent Owner, cables with individually
`insulated round wires in a jacket, as shown in Wu, do not have “unitary
`construction” as the FFCs described and claimed in the ’044 Patent. Id.
`The figures in the ’044 Patent also show a single insulating layer 501,
`as depicted in Patent Owner’s annotated and excerpted version of Figure 3
`reproduced below.
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`Patent Owner’s annotated and excerpted version of Figure 3 of the ’044
`Patent shows the single insulating layer 501 encloses the plurality of first
`conductors 55 (12 total conductors) and the plurality of second conductors
`56 (7 total conductors). Ex. 1001, Fig. 3.
`
`We agree with Patent Owner that the use of the term “unitary,” the
`’044 Patent distinguishing over Chen, the use of a single layer in the figures
`of the ’044 Patent, and the accompanying description that the use of an FFC
`would eliminate cable management suggests a single layer of insulation over
`an arrangement of wires in a plane. Nevertheless, we do not find that
`lamination specifically is mentioned or suggested by the Specification.
`Extrinsic Evidence
`Patent Owner argues that two distinct but related types of flat cable
`existed at the time of the invention (i.e. either when the patent was filed or
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`issued11: (a) ribbon cable, and (b) flexible flat cable (FFC). Figure 6 of Ex.
`2013, reproduced below, illustrates these types of cables. PO Resp. 8–9.
`
`
`Figure 6, above illustrates a ribbon cable and an FFC. Id. at 9 (highlighting
`added by Patent Owner). Patent Owner asserts that ribbon cables are
`generally made up of round conductors that are constructed in a variety of
`ways, including extruded, laminated, and braided constructions. Id. at 8
`(citing Ex. 2008 ¶ 48; Ex. 2013, 8, Fig. 6). In contrast, according to Patent
`
`11 The Federal Circuit has stated that “[o]ur decisions have not always been
`consistent as to whether the pertinent date [for dictionaries] is the filing date
`of the application or the issue date of the patent.” Inverness Medical v.
`Princeton Biomeditech Corp., 309 F.3d 1365, 1370 n.1 (Fed. Cir. 2002)
`(citing Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202– 1203
`(Fed. Cir. 2002) (pertinent date is issue date); Schering Corp. v. Amgen, Inc.,
`222 F.3d 1347, 1353 (Fed. Cir. 2000) (pertinent date is filing date)). Given
`that the filing date is recent (2013) and there is no evidence presented that
`the definition of FFC has changed in a consistent way since the issuance of
`the patent, we consider all references presented by the parties from around
`the time of the filing of the patent application in this case until the present
`time including those with dates as late as 2018.
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`Owner, FFC cables are generally constructed by laminating flat conductors
`with a flexible polymer backing using a number of technologies. Id.
`
`Patent Owner asserts that Ex. 2013 shows various round jacketed
`cables that are not labeled at flat flex cables. PO Resp. 9–10 (citing Ex.
`2008 ¶ 48; Ex. 2013, Fig. 1). Patent Owner presents an industry catalog that
`appears to show “flat” cables that are ribbon cables with round conductors
`and “flat flex” cables with flat conductors. PO Resp. 10 (citing Ex.
`2008 ¶ 48; Ex. 2010, 23. Patent Owner asserts, based on the catalog, that the
`structure of an FFC typically comprises a flat and flexible insulation. Id.
`Patent Owner further asserts that jacketed cables including a jacketed
`SATA cable “has a primary insulation that surrounds the conductor, a shield
`that wraps around the primary insulation for additional protection, and a
`jacket that wraps around the conductor and the shield.” PO Resp. 11–12
`(citing Ex. 2008 ¶¶ 50–52; Ex. 2013, 5; Ex. 2011, Fig. 1. Figure 1 of
`Exhibit 2011, reproduced below, shows a jacketed SATA cable.
`
`Figure 1 of Exhibit 2011, above, shows the shield and jacket of a jacketed
`SATA cable. We find that Exhibit 2011 is consistent with the Chen
`reference, distinguished by the ’044 Patent, showing a jacket over
`
`
`
`18
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`IPR2017-01492
`Patent 8,758,044 B2
`
`individually insulated round wires except that Chen shows a round cable and
`Exhibit 2011 shows a flatter cable.
`
`Patent Owner further asserts that there are several differences between
`an FFC and a jacketed cable. According to Patent Owner, jacketed cable
`cannot be bent at sharp angles12, takes up more space and adds weight, and is
`more burdensome to terminate when wanting to gain access to the
`conductors because the jackets, sleeves, and additional insulation need to be
`stripped. PO Resp. 13–14 (citing Ex. 2008 ¶ 53; Ex. 2012, 1; Ex. 2013, 12;
`Ex. 2014, 3). In contrast, according to Patent Owner, FFCs do not possess
`the drawbacks of jackets, sleeves and additional insulation; are small, light,
`flexible, and have a low profile and can be creased, punched, and folded at
`extreme angles. Id.
`
`Patent Owner states that one of Petitioner’s exhibits, a WellPCB blog
`post (Ex. 1019), depicts a normal round cable and then says an FFC “may be
`used instead of the normal round cables.” PO Sur-Reply 9. According to
`Patent Owner, a picture shown on page one of the blog post is the “normal
`round cable” that is being distinguished from the more FFC shown on page 2
`of the blog post. Id. Patent Owner points out the blog post also states, “[t]he
`wires [of an FFC] are not wrapped around several times and so they are
`lighter and flexible.” Id.
`
`
`12 Petitioner argues that Patent Owner is improperly reading a limitation to
`bending at a sharp angle into the claim. Pet. Reply 5. We disagree. Patent
`Owner uses its reference to bending at a sharp angle as evidence that their
`construction is consistent with the Specification and the purpose of the
`invention, rather than explicitly construing the claim to require the ability to
`bend at a sharp angle. PO Sur-Reply 8.
`19
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`IPR2017-01492
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`
`Petitioner asserts that the blog post refers to the jacked round cable as
`the FFC. Pet. Reply 6. The first page of the blog post (Ex. 1019) is
`reproduced below:
`
`
`
` Page 1 of Exhibit 1017 shows three jacketed round cables in a shield
`consistent with the traditional SATA cable. The image shows round wires
`that appear to be “wrapped around several times,” but the image is consistent
`with Exhibits 1018, 1019, and 1020, which refer to similar images as “flat
`flexible cables” or “flat cables.” Petitioner’s declarant asserts credibly that
`the phrase wrapped around refers to a traditional twisted pair in which the
`wire is wrapped around itself. Ex. 2026, 60:15–62:6. We cannot determine
`whether the text of Exhibit 1017 suggests that the image shown on page 1 is
`an example of normal round cables or of an FFC and, thus, do not rely on
`page 1 of Exhibit 1017.
`
`20
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`Petitioner asserts the “the ’044 Patent attempts to meet that stated
`objective by housing the power and data conductor wires in a unitary cable,
`which would lessen the manufacturing and management costs associated
`with a set of loose wires that must be individually managed. (See Ex. 1001
`at 1:46-50.)”13 Pet. 10. Nevertheless, the cable in Chen, which is
`characterized by the Specification as having cable management issues, is not
`a “set of loose wires.” See Ex. 1001, 1:30–34, 3:46–50.
`
`Based on the arguments and evidence above, on balance, we find that
`the extrinsic evidence is consistent with a finding that the ’044 Patent
`intended to claim a FFC that is distinguished from a normal jacketed cable in
`that it has a single layer of insulation. The extrinsic evidence also suggests
`using lamination to form the insulation layer of the FFC.
`d. Patent Owner – FFC
`
`Specification
`Petitioner states “[n]one of the claims of the ’044 Patent refer to any
`shape of any conductor . . . [and] nothing in the [text of] specification
`describes the conductors of an FFC as being flat, or as being “laminated
`with a pliable material.” Pet. Reply 4. Nevertheless, we find that the figures
`of the ’044 Specification do show flat (rectangular) conductors. Ex. 1001,
`Fig. 3.
`Patent Owner emphasizes that the figures of the ’044 Patent depict
`only flat conductors in the FFC 50. PO Sur. Reply 8. Additionally, the ’044
`
`
`13 We acknowledge that the record contains a definition of cable
`management, but neither party cited to or discussed that definition and we do
`not rely on it. The Digikey glossary defines “Cables, Wires – Management”
`as “Devices used to control, arrange, or guide cables or wires.” Ex. 2025, 4.
`21
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`IPR2017-01492
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`Patent does not disclose or depict round conductors anywhere. Id.
`According to Patent Owner, that is because the inventor understood that an
`FFC by definition only included flat conductors. Id. Additionally, the
`figures all depict the same FFC cable, even where the figures are directed to
`multiple embodiments of the invention. Id. Thus, flat conductors are not a
`preferred embodiment but appear to be the only embodiment shown in the
`figures.14 Id. We agree. All embodiments shown have the same FFC cable
`with a single insulating layer and flat conductors. Ex. 1001, Figs. 1–14.
`However, our reviewing court has repeatedly held that it is “‘not enough that
`the only embodiments, or all of the embodiments, contain a particular
`limitation’ to limit claims beyond their plain meaning.” Unwired Planet,
`LLC v. Apple Inc., 829 F.3d 1353, 1359 (Fed. Cir. 2016).
`The Specification states that “advantages of the invention provided by
`the FFC comprise greatly facilitating the manufacturing process and
`reducing the manufacturing cost by eliminating cable management
`equipment and the step of cable managing processes” (Ex. 1001, 1:53–57)
`
`
`14 Petitioner does not provide a intrinsic evidence showing that the figures
`are accurate or drawn to scale. Cf. Nystrom v. Trex Co., 424 F.3d 1136,
`1149 (Fed. Cir. 2005) (“[U]nstated assumptions in prior art patent drawings
`cannot be the basis for challenging the validity of claims reciting specific
`dimensions not disclosed directly in such prior art.”); see Hockerson-
`Halberstadt, Inc. v. Avia Grp. Int’l., Inc., 222 F.3d 951, 956 (Fed. Cir. 2000)
`(“[P]atent drawings do not define the precise proportions of the elements and
`may not be relied on to show particular sizes if the specification is
`completely silent on the issue.”).
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