`U.S. PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`TOYOTA MOTOR CORPORATION and AISIN SEIKI CO., LTD.,
`Petitioner
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`__________
`
`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR 2017-01537 (Patent 7,683,509)
`Case IPR 2017-01538 (Patent 7,928,348)
`Case IPR 2017-01539 (Patent 7,154,200)
`__________
`
`Record of Oral Hearing
`Held: September 18, 2018
`__________
`
`Before KRISTEN L. DROESCH, JOHN A. HUDALLA, and AMANDA F.
`WIEKER, Administrative Patent Judges.
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`JOSHUA L. GOLDBERG, ESQ.
`JAMES R. BARNEY, ESQ.
`ALYSSA J. HOLTSLANDER, ESQ.
`Finnegan, Henderson, Farrabow, Garrett & Dunner, LLP
`901 New York Avenue, NW
`Washington, DC 20001
`202-408-4000
`joshua.goldberg@finnegan.com
`
`ROBERT C. MATTSON, ESQ.
`ANDREW M. OLLIS, ESQ.
`Oblon, McClelland, Maier & Neustadt, LLP
`1940 Duke Street
`Alexandria, VA 22314
`703-413-3000
`rmattson@oblon.com
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`ON BEHALF OF THE PATENT OWNER:
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`BRENTON R. BABCOCK, ESQ.
`TED M. CANNON, ESQ.
`DAVID JANKOWSKI, ESQ.
`Knobbe, Martens, Olson & Bear, LLP
`2040 Main Street, 14th Floor
`Irvine, CA 92614
`949-760-0404
`brent.babcock@knobbe.com
`
`BRAD M. SCHELLER, ESQ.
`DREW DEVOE, ESQ.
`TODD MCGRATH, ESQ.
`SERGE SUBACH, ESQ.
`PATRICK DRISCOLL, ESQ.
`Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC
`Chrysler Center
`666 Third Avenue
`New York, NY 10017
`212-935-3000
`BMScheller@mintz.com
`
`TIM SEELEY, ESQ.
`JAMES HIETALA, ESQ.
`Intellectual Ventures II LLC
`
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday,
`September 18, 2018, commencing at 9:00 a.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`
`P-R-O-C-E-E-D-I-N-G-S
`
`
`9:05 a.m.
`JUDGE DROESCH: Good morning, everybody. We're here for oral
`argument for IPRs 2017-01494, 1495, 1537, 1538, and 1539, covering
`Patent 7,683,509, Patent 7,928,348, and Patent 7,154,200, and not
`necessarily in that order. As outlined in the orders regarding the oral
`arguments, we'll begin today with arguments covering the 7,683,509 Patent
`for IPRs 2017-01494 and -1539. Following that oral argument, we'll
`proceed with the arguments for Patent 7,928,348 covering IPRs 2017-01495
`and -1538. And finally, the last oral argument will cover Patent 7,154,200
`and IPR 2017-01537. We'll begin in a few minutes with the arguments for
`the ’509 patent and IPR -1494 and -1539. Petitioner will present its
`arguments first. Petitioner is allowed 30 minutes and may reserve some of
`its time for rebuttal. Patent Owner will follow and will also have 30
`minutes. Patent Owner may reserve some of his time for sur-rebuttal. And
`counsel for petitioner, when you're ready, please introduce yourself and
`co-counsel and anyone else in attendance on behalf of Petitioner.
`MR. MATTSON: Thank you, Your Honor. Robert Mattson with
`the Oblon firm on behalf of Petitioner Aisin Seiki. I'll be arguing for the -
`1594 and -1539 IPRS for the ’509 patent, and my partner, Andrew Ollis,
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
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`also with the Oblon firm, will be arguing last, I suppose, for the -1537 IPR
`which relates to the ’200 patent.
`MR. GOLDBERG: Good morning, Your Honor. Joshua Goldberg
`for Toyota with the Finnegan firm, and with me I have my colleagues James
`Barney and Alyssa Holtslander, who will be handling the argument for the
`’348 patent.
`(Off-record comments.)
`MR. BABCOCK: Good morning, Your Honors. I'm Brent Babcock
`with Knobbe Martens. On the first IPR, the ’509 patent, and the second IPR
`for the ’348 patent, I'll be arguing on behalf of the Patent Owner, Intellectual
`Ventures. With me is Ted Cannon with Knobbe Martens. Also David
`Janikowski. And then I have with me Intellectual Ventures representatives
`Tim Seeley, in-house counsel, and James Hietala. And then I'll let the Mintz
`folks for the ’200 patent introduce themselves.
`MR. SCHELLER: Good morning, Your Honors. My name is Brad
`Scheller. I'm from the Law Firm of Mintz Levin. I'll be arguing on behalf
`of Patent Owner Intellectual Ventures for the IPR -1537 concerning the ’200
`patent. Also with me are my colleagues Drew DeVoe, Todd McGrath, Serge
`Subach, and Patrick Driscoll. Thank you.
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
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`JUDGE DROESCH: Counsel for petitioner, you may begin for the -
`1494 and -1539 patent -- IPR -- sorry. Would you like to reserve some time
`for rebuttal?
`MR. MATTSON: Yes, Your Honor. I'd like to reserve eight
`minutes for rebuttal. May I proceed? Thank you. The ’509 patent relates
`generally to a motor with fluid pathways in plastic that encapsulates the
`motor stator. At issue in this set of IPRs are claims 1–3, 7, and 14 through
`15 -- 14 and 15. The only arguments that IV has raised with respect to these
`claims relate to the independent claims 1, 3, and 14. Dependent claims 2, 7,
`and 15 have no separate arguments related to patentability.
`I'm not going to discuss claim 3 today. That was one of the SAS
`grounds that was added subsequently. I'll be focusing on claims 1 and 14.
`The first ground that I'll be discussing is the Bramm plus Watterson
`combination. Bramm describes an artificial heart with a magnetically
`suspended impeller. That's for pumping blood. But Bramm also says that
`the pump can be used for other fluids as well, for example, radioactive,
`abrasive, or corrosive fluids. In the Figure 2 that you see here, there are
`inlets on either end of the pump, and the outlet you can see in Figure 1, not
`in this Figure though, is going to be in the middle of the pump because it's a
`centrifugal pump.
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`Because the pump is embedded in a human body, the entire thing is
`encapsulated in biocompatible plastic. The only portion of the claim that's
`in dispute here in ’509 patent in claims 1 and 14, is the preamble and the
`word “fluid cooled.” As an initial matter, the preamble is not limiting for
`the ’509 patent. It doesn't breathe life and meaning into the claim, because
`the body of the claim recites a complete fluid-cooled device. You have a
`heat transfer, fluid, heat transfer, fluid pathway. And the pathway is in the
`body of plastic that substantially encapsulates the conductor.
`What IV is doing is going even a step further, and they're saying that
`not only is the preamble limiting, but it's limited to its intended purpose.
`And when you have a claim that recites a complete invention in the body,
`according to the Rowe case, you don't read into the claim, the intended
`purpose, in the preamble. But even if the preamble were limiting for its
`intended purpose, the heat from the motor disclosed in Bramm has to go
`somewhere. It's embedded in a human body, if it's for a heart.
`And the law of conservation of energy says that that heat is going to
`accumulate, doesn't just disappear, and what's going to happen is you're
`going to have blood flowing in the inlets. It's going to be heated by the heat
`coming off of the motor, and then that's going to be transferred by
`convection from the outlet. And even the ’509 patent itself recognizes this
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`basic problem in engineering, and IV has even argued this in its Patent
`Owner Response on page one, that engineers must design a way to cool such
`devices, quote, “to remove heat generated by operation of the device.” So
`that's exactly what's going to happen by convection with the Bramm pump.
`Dr. Trumper mentions this in his declaration at paragraph 164. So
`IV knows that there's going to be heat generated by the motor and that
`there's going to be some heat transfer, so they say, well, because Bramm is
`trying to minimize the heat that's generated inside the body, because
`overheating can damage the blood cells, that really, this wasn't the intended
`purpose of Bramm. But just because the amount of heat from the motor is
`held to a minimum level does not mean that the motor doesn't get hot. There
`has to be heat generated by electricity going through the coils of the motor.
`And the temperature at which Bramm says that the blood starts to
`degenerate at 42 degrees Celsius, of course, would give some leeway to
`transfer heat and at temperatures above 36 degrees Celsius, which is human
`body temperature.
`The next combinations relate to the Stephan reference, and there are
`actually two grounds. Stephan by itself, and then Stephan in combination
`with Raible and Neal. The Raible reference, and Neal for that matter,
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`basically collapse in the Stephan combination grounds, because the only
`arguments that IV is making with respect to this relate to Stephan only.
`Stephan is a feed pump, and it has first and second housing halves in
`this demonstrative slide nine. They're shown in dark green on the top and
`light green on the bottom. And because they're welded together under the
`Board's construction of monolithic body, that's a monolithic body of plastic.
`Stephan also says that the plastic encapsulates the conductor, and you have
`fluid flow from the inlet at the top to the outlet at the bottom. Stephan also
`says you can reverse the direction and flow the other way.
`The only issue that IV raises with the Stephan grounds is whether or
`not Stephan describes a fluid pathway. This panel has already construed
`heat transfer fluid pathway, and what IV is doing is construing the
`construction at this point and saying that, well, the channel, which is part of
`the construction pathway, has to define a specific route that fluid will flow
`within a structure. That's exactly what happens in the Stephan reference.
`The upper housing is called a funnel section for funneling fluid, and
`the lower portion of the housing has funnel segments 44 for funneling fluid
`towards the outlet. The construction that IV is attempting to inject into the
`panel's preexisting construction is way too narrow. It doesn't make sense in
`the context of the ’509 patent. The ’509 patent is talking about non-linear
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`fluid pathways. Well, any time you have a bend in a fluid pathway, you're
`going to create turbulence. And this is just basic textbook fluid dynamics.
`You're going to have at least two separate flow paths every time you
`bend a fluid pathway. And the ’509 patent itself does not mention this
`requirement of eliminating turbulence of chaotic flow. And in fact, if we
`look at the ’509 patent, there's only one pump structure that's even described,
`and it's this patent, that's been incorporated by reference, to Bayer, the ’737
`patent.
`And the basic structure of that pump is very similar to what you see
`in Stephan where the inlet, the outlet, and the impeller are all axially aligned.
`You have the rotor in the middle, and all the fluid going through the pump
`has to flow -- it's sucked in by the impeller, goes through the impeller, and
`out the outlet.
`Now, of course, the impeller itself is going to create turbulence
`within the pump, because it's spinning in a different plane than the general
`flow of the fluid. And the ’737 patent -- I'm sorry, the ’509 patent -- when it
`describes the Bayer ’737 patent, it calls the fluid pathway, which is in purple
`here on slide 12, it calls that a channel, which is the same word that the
`panel used to construe heat transfer fluid pathway.
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`JUDGE DROESCH: There are several embodiments disclosed in
`the ’509 patent. For describing all of the various different embodiments, did
`the applicant at the time, did they describe the pathway as a channel in all
`cases, or just in some cases?
`MR. MATTSON: I -- there are many embodiments, you're right,
`Your Honor. I believe in almost -- I believe in every embodiment, they
`describe it as a channel, or it's partially formed -- I believe it is a channel in
`all cases, including the sole description of a pump structure.
`JUDGE DROESCH: Okay. I believe claim 1 is broader than just a
`pump structure. It covers electromechanical devices, or some other broad
`term, I forget. So maybe other embodiments like the solenoid, like say in
`Figure 18 and 19, would that read on the claims? Would the claims cover
`embodiments of -- other embodiments like Figures 18 and 19 of that
`different solenoid?
`MR. MATTSON: Yes. Yes. And in fact, I think some of the
`language that you see in claims 1 and 14, it tracks almost exactly that
`embodiment, even though it's not a pump. Slide 13, we just highlighted the
`pump -- or, the purple channels that go through Stephan and the ’737 patent
`to Bayer.
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`The remaining grounds at issue in these IPR proceedings involve the
`Umeda reference, the primary reference. First I'll discuss the combination of
`Umeda, Raible, and Neal.
`Again, the Raible reference can be ignored, because it was only
`relevant if the panel had adopted the narrower construction of monolithic
`proposed by Petitioners. Umeda is also a pump. It's a centrifugal pump.
`Fluid comes into the inlet in the dark green cover that you can see on slide
`14 and gets sucked in by the impeller and expelled out the outlet 14, which
`is formed in part by the dark green cover and the light green body A.
`Together, the dark green and light green sections form a monolithic body of
`plastic. The stator, which includes the conductor, which is blue on slide 14,
`and the stator 43 which is grey is substantially encapsulated by the lighter
`green plastic. The Neal reference was relied upon because Umeda says that
`you're using acrylic resin. It actually doesn't say plastic, it says you're using
`acrylic resin, and one type of acrylic resin is thermoplastic. Neal is actually
`the same inventor that's on the ’509 patent, and the Neal ’554 patent that
`we're relying on is prior art. It says you would want to encapsulate the stator
`of a motor because that would help with heat transfer and other things.
`There are several disputed claim elements that relate to this combination.
`The first is whether the fluid pathway is in the monolithic body.
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`You can see just from Umeda Figure 1 that with the light green area
`now including the cover, because the cover plus the body form the
`monolithic body, the only way that fluid can get into or out of that pump is
`in the outlet -- or, in the inlet and out the outlet. So the pathway has to be in
`the monolithic body. And if you look at even the Umeda text as instructed,
`it uses the word “channel.” The abstract, for example, says at least a portion
`of the fluid channel is constituted by the molded stator A.
`The next element that's being contested by IV is whether it would be
`obvious to make the monolithic body out of injection-molded thermoplastic
`material. Well, again, the inventor's prior patent, which is prior art against
`the ’509 patent is instructive and explains why it would be obvious to use
`injection-molded thermoplastic as the body of material that's encapsulating a
`stator. And in fact, the preferred material in Neal ’554 is injection-molded
`thermoplastic, and the name of the plastic, or one of the names of the plastic
`that Neal ’554 mentions, is Konduit, which is the same exact brand of
`injection-moldable thermoplastic that's used in the ’509 patent.
`So, another issue that IV has raised is whether it would be obvious to
`injection mold, and what this comes down to is it's a trade-off between
`capital cost and the benefits that you get from mass production when you use
`injection molding. And both experts recognize this, that injection molding is
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`better for a mass-production process. At Dr. Garris' deposition, he's the
`expert for IV, he was asked, does injection molding have any benefits over
`cast molding? And he ultimately answers, well, I think the, you know,
`the largest benefit of the injection molding is that it's a high-production
`process. This is also consistent with the very reference that IV is relying on
`to show or to assist its argument relating to injection molding. Exhibit 2010
`at exhibit page 34 lists at least four advantages of injection molding, and
`also says it's the most popular type of plastic processing there is. So even
`though injection molding might have a higher initial capital cost, eventually
`you're going to recoup that because you can mass produce, and it can also
`lower labor. It's also better for reproducibility, and it's highly automated.
`So the next argument that IV comes up with is well, Umeda's walls
`are too thick to injection mold. But if you first just look at the same
`textbook I mentioned, Exhibit 2010, the pictures there also have thick
`portions, and there are no dimensions or quantities in the textbook that tell
`you what's too thick or too thin. And in any case, this argument makes no
`sense, because the ’509 patent and Neal ’554 both have similar thick and
`thin portions. Here, on slide 22, we have on the right an annotated version
`of Neal ’554 Figure 7, and you can see that there are thick portions closer to
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
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`the middle of the motor, and there's a very, very thin portion that's on the left
`side kind of like the plate that's on the bottom of the motor.
`And one of ordinary skill in the art would not be discouraged,
`therefore, from using injection molding to make Umeda, because Neal,
`which is a reference that says use injection-moldable thermoplastic, also has
`thick and thin portions. And these are the same proportions, you can see on
`slide 23, that you have in the ’509 patent. And in fact, if you go back to
`slide 22, you can see that the only difference between the Neal ’554 patent
`Figure 7, and on slide 23, the ’509 patent Figure 7, is that the inventor
`labeled the heat inserts in -- heat sync inserts in Neal ’554 as heat pipe
`inserts in the ’509 patent.
`So this idea about thickness and thinness really doesn't make any
`sense when you consider that one of ordinary skill in the art is being
`instructed by Neal ’554 to make thick and thin parts of the same
`encapsulating material by injection molding.
`Another argument that IV raises with respect to the Umeda
`combinations is whether the conductor is substantially encapsulated. Well,
`you don't have to look any further than Figure 1 to see that the light green
`area is surrounding the blue conductors.
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`JUDGE DROESCH: The Figure 16 that you have on the slide, is that
`the same embodiment as what is shown in Figure 1?
`MR. MATTSON: The patent calls it a different embodiment.
`Umeda calls every Figure a different embodiment, but what Figure 16 is
`showing is just a variation of Figure 1 or any of the other principal
`embodiments where you can make -- increase the surface area by
`using -- putting little jagged edges, I guess, on the ends of the stator teeth.
`What Figure 16 shows, and would tell one of ordinary skill in the art, is that
`the plastic that is encapsulating the stator goes in and out of the stator teeth.
`And that's the green area that you can see in Figure 16.
`Another argument that IV raises, which relates only to claims 1, 2,
`and 7, is that the monolithic body of plastic does not completely cover the
`exterior of Umeda except for the inlet and outlet. That's a circular argument,
`because the claim says that the monolithic body is on the exterior, so if the
`monolithic body is the exterior, there can't be anything beyond that that's
`outside of it. So you can plainly see in Umeda that the monolithic body,
`which consists of the body A and the cover 11, completely cover the exterior
`of the pump except for the inlet and the outlet.
`So what IV does, it says, okay, well, there's this other piece, the
`support frame 16, and because you can see that through the inlet, then that's
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`not covered. But the support frame 16 is not on the exterior. It's in the
`interior, and naturally, if the claims says you don't have to cover the inlet
`and the outlet, then there are going to be parts inside of the pump that are
`visible through the inlet and the outlet.
`The last combination is Umeda and Stephan. The same arguments
`are being raised with respect to Umeda. The only thing that's different with
`this combination is that the Stephan reference is being used to show that it
`would be obvious to one of ordinary skill in the art to use injection-moldable
`thermoplastic, and Stephan also says in paragraph 42 that this invention,
`which uses injection-moldable thermoplastic, is suitable for mass
`production, which is another reason why it would be obvious to use
`injection-moldable thermoplastic to encapsulate the pump of Umeda. And if
`there are no more questions, I'll reserve the rest of the time for rebuttal.
`MR. BABCOCK: Good morning, Your Honors. I'm going to hit
`three key claim construction issues, or three key issues in this hearing. And
`these are going to be the fluid pathway in the monolithic body. We're also
`going to talk about fluid cooled, what that means. And then we're going to,
`at the end, touch on the separate conduit issue in claim 3. Petitioner raised a
`couple additional issues about injection-molded thermoplastic, and also
`about that Figure 16. We've got that scheduled for the ’348 hearing.
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`So these issues that we're addressing here are dispositive for this
`case. I will be addressing those. And if you want me to address those in this
`hearing, I can. Given that we only have 30 minutes, my thought was I'd hit
`three issues here, hit those other three issues in the next hearing, if that's
`okay.
`
`So I want to start off with the first issue, which is -- yes, Your
`Honor? It looked like you had a question.
`JUDGE DROESCH: I thought we were talking about -1494?
`MR. BABCOCK: This slide has an error on the top.
`JUDGE DROESCH: Oh, okay.
`MR. BABCOCK: Sorry. But in the heading here, this is -1494 and -
`
`1539.
`
`JUDGE DROESCH: Okay.
`MR. BABCOCK: I apologize. At the top, this is a mistake. So the
`first issue that we're going to be dealing with is fluid pathway in the
`monolithic body. That issue is -- we can focus on Stephan and Umeda as
`kind of how that -- how that claim limitation plays out. Slide 4 shows the
`limitation. Slide 5, the Board has adopted IV's construction, that pathway is
`a channel.
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`JUDGE DROESCH: But didn't the Board, did we construe the term
`to include the word “structural” that Patent Owner said in their preliminary
`response, or was it just channel?
`MR. BABCOCK: Well, as you can see here, this is what the Board
`said. It just said it was construed as the broadest reasonable construction of
`heat transfer fluid pathway as a channel for liquids or gasses.
`JUDGE DROESCH: So you're now rearguing that it requires a
`structure?
`MR. BABCOCK: What I'm -- I'm not -- I'm arguing, Your Honor,
`that it has -- it has to be a separately-definable element. And I want to point
`to slide 6, and here's what I want to point out.
`JUDGE DROESCH: Well, I want to ask you a question, because I
`asked this to counsel for the Petitioner. Does every embodiment that's
`disclosed in the ’509 patent, does it describe every embodiment of a pathway
`as a channel, or some of them just described as a pathway?
`MR. BABCOCK: I'd have to go through every limitation, every
`example to see, but what it does say, I can say definitively, is that every
`pathway, or every channel, that's defined is in the body. Now, when I say in
`the body, we have to understand what that means. We're not talking about in
`the device. If you look at claim one, it -- it claims a device. You see it
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`claims a field-functioning device. And later on in element (c), it says that
`the body encapsulates or covers the exterior of the device.
` So we're not talking about fluid in the device. Everybody
`recognizes that fluid in a pump has been around for a long time. But what
`the Patentees did here, what the Applicants did here, is they said we have a
`device, and you have an encapsulating cover. A thermal injection-molded
`plastic cover, that is called the body. And it says that the pathway, or
`channel, has to be where? In the monolithic body. Not surrounded by the
`monolithic body. In the body itself. So in the green of this example. Every
`example in the patent where you see the pathway, it's in the body.
`JUDGE DROESCH: So it has to be formed during that time in the
`monolithic body?
`MR. BABCOCK: It has to be in the body. It has to be in the body.
`Now, there's other -- there's another -- in ’348, there's additional language
`that is different than this language. But the example that we use, that we've
`been using internally -- and I saw this in Lafayette Park this morning as I
`drove by. If you think about a fort, and a fort has walls around the fort, you
`have cannons.
`Some of the cannons are in the walls. Some of the cannons are in the
`middle. They're in the fort. They're not in the walls. They're not in the
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`body. Just like here, the pathways are in the body. They're not -- but
`they're -- but they're -- the examples that we're going to see from Stephan,
`from Umeda, they're not in the body.
`They're in the device, but they're not in the body. And you can see
`that from this claim, they distinguish between three things. There's a
`pathway. The pathway is distinct from the body. And the body is distinct
`from the device. So you can't just say, oh, as long as there's fluid in the
`device, you satisfy this claim. You have to identify the device, what's the
`body, and again, the body, it says the body encapsulates the conductor.
`Petitioner on this one said the stator. It's actually the conductor, which is
`different than the stator.
`JUDGE WIEKER: The monolithic body only has to encapsulate the
`conductor, correct?
`MR. BABCOCK: In this claim.
`JUDGE WIEKER: In all of the independent claims challenged, I
`believe?
`MR. BABCOCK: I'd have to double-check, but I think that's correct.
`JUDGE WIEKER: So when you're characterizing the invention
`claimed as the monolithic body covering the entire device, that's not entirely
`accurate?
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`Case IPR 2017-01494 (Patent 7,683,509)
`Case IPR 2017-01495 (Patent 7,928,348)
`Case IPR2017-01537 (Patent 7,683,509)
`Case IPR2017-01538 (Patent 7,928,348)
`Case IPR2017-01539 (Patent 7,154,200)
`
`MR. BABCOCK: Well, I go on, Your Honor. I apologize. If you
`look at (c), it goes on and says that wherein the monolithic body completely
`covers the exterior of the device, except for the inlet and the outlet. So
`there's two things it does. It encapsulates the conductor, and it covers the
`exterior. It's an injection-molded plastic cover or housing or encasement
`that covers what's inside. In this case, it says it encapsulates the conductor.
`It encapsulates more than that as well.
`But the Board has to -- in order to read this claim correctly, the
`Board has to say, okay, where is the device? The claim calls for a device.
`Where is the body? And then where is the pathway in the body? So those
`are important concepts that the Petitioner wants to gloss over and say, look,
`there's fluid in the pump. You satisfied this claim. Well, of course there's
`prior art that shows that. There's plenty of pumps out there that have fluid
`flowing through them.
`What's special about this is that the fluid is separate and segregated
`in the walls so that you can run caustic fluid through this and it doesn't
`interact with the elements of the pump on the inside. All pumps you have
`fluid flowing through them. You have to make sure wherever that fluid is
`doesn't have negative effects on all the things inside the pump.
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