`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`YAMAHA GOLF CAR COMPANY,
`Petitioner,
`
`v.
`
`CLUB CAR, LLC,
`Patent Owner.
`__________
`
`Case IPR2017-02141 (Patent 7,239,965 B2)
`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
`__________
`
`Record of Oral Hearing
`Held: February 14, 2019
`__________
`
`
`
`
`Before JOSIAH C. COCKS, CARL M. DeFRANCO, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`
`
`
`
`Case IPR2017-02141 (Patent 7,239,965 B2)
`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`ROBERT W DICKERSON, ESQ.
`ARMAND AYAZI, ESQ.
`Zuber Lawler & Del Duca LLP
`350 South Grand Avenue
`Los Angeles, California 90071
`(213) 596-5620
`rdickerson@zuberlaw.com
`aayazi@zuberlaw.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`CYRUS A. MORTON, ESQ.
`WILLIAM E. MANSKE, ESQ.
`Robins Kaplan LLP
`800 Lasalle Avenue
`Suite 2800
`Minneapolis, Minnesota, 55402
`(612) 349-8722
`(612) 349-8786
`cmorton@robinskaplan.com
`wmanske@robinskaplan.com
`
`
`
`
`The above-entitled matter came on for hearing on Thursday,
`
`February 14, 2019, commencing at 1:00 p.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`2
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`Case IPR2017-02141 (Patent 7,239,965 B2)
`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
`
`P R O C E E D I N G S
`- - - - -
`
`12:59 p.m.
`JUDGE KINDER: All right, good afternoon, everyone. I'm Judge
`Kinder, and with me today sitting to my right is Judge Cocks and remotely
`should be Judge DeFranco.
`JUDGE DEFRANCO: Yes, Judge Kinder, I'm here.
`JUDGE KINDER: Okay. So he will be audio. So when you are
`reading a slide number since he is not actually in the courtroom if you post it
`up as a demonstrative please indicate the slide number, let him know where
`you're at. And it also helps when we're reviewing the record later on.
`Today we are calling Yamaha Golf Car Company as petitioner
`versus Club Car LLC patent owner. And we have four IPRs today, IPR
`2017-02141 and 02142 involving U.S. patent 7,239,965 and then IPR 2017-
`02143 and 02144 involving U.S. patent 7,480,569.
`As I've already introduced the panel today if counsel for petitioner
`could make an appearance and let us know who will be arguing today.
`MR. DICKERSON: My name's Robert Dickerson here for
`petitioner. With me at counsel table is Armand Ayazi also for petitioner.
`JUDGE KINDER: Patent owner.
`MR. MORTON: Yes, Your Honor. Cy Morton from the Robins
`Kaplan law firm for Club Car. With me is Will Manske from Robins Kaplan
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`Case IPR2017-02141 (Patent 7,239,965 B2)
`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
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`and from my client Club Car is Travis Iams in the audience and I will be
`arguing.
`JUDGE KINDER: All right. So I'm going to go over a little bit of
`information that was -- I think we put it out in the trial order.
`But each party will have a total of 90 minutes today of argument
`time. The parties may allocate their argument time at their discretion over
`the four cases but not to exceed 90 minutes in total.
`Somewhere in the middle, maybe after petitioner presents we'll
`probably do a really quick five-minute recess just because it's a really long
`time to go that long straight, about three hours plus.
`So we'll do a quick recess and if one is needed during the hearing
`please just raise your hand and interrupt and ask because this is a long
`afternoon.
`Petitioner will present arguments first. The patent owner will then
`have the opportunity to respond to petitioner's arguments. Petitioner may
`use any time it has reserved to rebut or respond to patent owner's arguments.
`And then patent owner may also present a brief surrebuttal if it has
`reserved time. The reply and the surrebuttal should only address issues that
`are brought up in the hearing by the primary case in chief. So no new
`material should be brought up in either.
`The parties may also address pending motions to exclude or other
`issues during their argument time. I'm going to ask petitioner, how much
`time would you -- Mr. Dickerson, how much time would you like to reserve?
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`Case IPR2017-02141 (Patent 7,239,965 B2)
`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
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`MR. DICKERSON: Twenty minutes, Your Honor.
`JUDGE KINDER: Thank you. And Mr. Morton, how much time
`would you like to reserve for your surrebuttal?
`MR. MORTON: Fifteen minutes.
`JUDGE KINDER: All right. So that's how I will set the time
`initially.
`We have reviewed the objections to demonstratives and if those
`come up today if you want to address them that's fine. We're not going to
`make a ruling before the hearing today.
`We are aware of the objections and we actually have a sheet here.
`So if you're presenting a slide that the other side has objected to it may raise
`questions that we stop and talk about as to the underlying evidence that
`supports that slide. So just be aware of that if you're presenting one of the
`slides that was objected to.
`As far as demonstratives as we put in our order they are not
`evidence. We don't consider them evidence. When we go to write the final
`decision anything in the demonstratives that you talk about today that we're
`looking at that is not supported in the record as evidence will obviously not
`be part of our final decision-making.
`All right, I think I have all the preliminary matters. And I believe
`we're ready, Mr. Dickerson, whenever you are. Let me set your time first to
`-- let me do the math here, 70 minutes, right?
`MR. DICKERSON: Yes, sir. Thank you, Your Honor.
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`Case IPR2017-02141 (Patent 7,239,965 B2)
`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
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`JUDGE KINDER: Judge DeFranco, you still good?
`JUDGE DEFRANCO: I am and I have the demonstratives in front
`of me and I will follow along as long as counsel identifies the slide they're
`on.
`
`JUDGE KINDER: All right. Thank you, Mr. Dickerson. Whenever
`you're ready.
`MR. DICKERSON: May it please the Board, Robert Dickerson and
`Armand Ayazi. And I did forget to introduce Hiro Kubota, Mr. Kondo and
`Mr. Nakai from Yamaha.
`Your Honor, we're reserving 20 minutes and during that time to the
`extent any issues come up about the motion to exclude I'll address it then.
`We would request respectfully an opportunity to provide something
`in writing with respect to some of the motions. We've not been able to brief
`anything with respect to that, those pending motions.
`JUDGE KINDER: Which motions specifically?
`MR. DICKERSON: That would be the notice of improper reply
`arguments and objections to petitioner's evidence.
`JUDGE KINDER: I guess you can address that during the oral
`hearing. You're saying you need additional briefing to address them
`thoroughly?
`MR. DICKERSON: Well, we haven't had the opportunity to brief
`them at all and they've had I think two or three opportunities, an email and a
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`Case IPR2017-02141 (Patent 7,239,965 B2)
`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
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`couple of written submissions including they also reiterated some of those
`points in their objections to the demonstratives.
`JUDGE COCKS: So, counsel, what are you specifically asking for?
`MR. DICKERSON: The opportunity to submit a brief and to the
`extent that there's -- a very short, I actually have a bench memo here that
`addresses some of the points, but we'd be happy to submit a brief right after
`the hearing that addresses the evidentiary issues and to the extent the judges
`have any need for a teleconference we'd be happy to do a conference call
`shortly after the hearing.
`JUDGE COCKS: Okay, we'll table that for the moment. We'll
`address it later.
`MR. DICKERSON: Thank you very much. Going to slide number
`2 and this sets forth the topics that we're going to be addressing today.
`And before I get to that a brief comment. Even though this case
`involves 2 patents, 50 odd claims, multiple grounds, generated a lot of
`briefing, motions, declarations and each side has submitted quite a few slides
`when we really step back and look at it this is a pretty simple case.
`The technology is not complex. The issues that we're facing are not
`complex.
`The real problem I think in a case like this is that it gives the
`appearance of complexity and it's possible to lose sight of the forest for the
`trees.
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`Case IPR2017-02141 (Patent 7,239,965 B2)
`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
`
`Hopefully by the end of the presentation we'll have convinced you
`that it is a pretty simple case.
`Anyway, as indicated on slide 2 we're going to do a brief overview
`of the patents, a person of skill, we'll get into the state of the art, novelty.
`Then we'll get into claim construction. We put that then because we think
`that some of the foregoing things apply there.
`Then we'll get into the invalidity issues at the end. And we'll get to
`IPRs 02142 and 02144 at the end. I'm not splitting up my time. I'll just get
`to those at the end.
`JUDGE KINDER: Okay.
`MR. DICKERSON: Moving to slide 3, just it's a transition slide.
`Going to slide 4, this is an overview of the patents family tree. There's the
`provisional which -- and you've got both applications and then the two
`patents, the '965 and the '569.
`The really interesting thing to keep in mind is that the specifications
`are exactly the same except for the related application data in them. So the
`specifications are the same.
`During discovery we kind of treated them that way. But because of
`the related data the cites don't line up, but in terms of the specifications they
`are exactly the same.
`Also, the claims of the two patents use some different terminology.
`But, as we'll see going through, they really all, both patents concern the
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`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
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`same general principles, same general concepts. There's nothing that we
`have to address really separately in terms of brand new technology, et cetera.
`Again, continuing with slide 5 and the overview of the patents the
`key thing to also keep in mind here is what the field of the invention is of
`these patents.
`It's stated here, the field is field of vehicle control. And we're going
`to see vehicle quite a bit, more particularly golf cart. But the field is
`vehicles. And when you get in the patent, certainly the '569 columns 7, 45-
`51 it makes clear that they're not limiting this to just golf carts.
`JUDGE COCKS: Does that suggest that a golf cart is a vehicle?
`MR. DICKERSON: Yes, a golf cart is a vehicle. We'll get to that
`and everybody is agreeing to that. By everybody I mean the experts in the
`case.
`
`So I'm switching now to slide 6 which is figure 1 from the -- both
`patents actually. And it is illustrative of the whole -- this slide presents it a
`little bigger, easier for me to read for sure.
`It lists the various components that are really the technology of this
`device that is here in these components.
`The next slide, slide 7, has the same figure up in the upper right-hand
`corner. The notation in the box is that these are black box components and
`for those of us who have done patent prosecution in the past black box
`means the patents don't say anything about how to make those, how to use
`those. They're just presented as conventional state of the art componentry,
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`Case IPR2017-02143 (Patent 7,480,569 B2)
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`going to be used in exactly the way that they are in the state of the art
`conventional.
`In fact, in the patent it actually specifies a manufacturer for one of
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`them.
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`So every single one of these components was state of the art. And
`we're going to get into that the patent itself also gives us a great indication as
`what was state of the art at the time.
`I'm going to slide 8 now. And a very brief overview of the
`technology. It's geofencing. That's the term that's used now.
`JUDGE KINDER: Was that term geofencing around when the
`patents were filed though?
`MR. DICKERSON: I don't believe so, Your Honor. I think it arose
`-- pardon?
`MR. AYAZI: It did exist.
`MR. DICKERSON: It did exist. Okay, I stand corrected by co-
`counsel. It was apparently involved at the time. I thought it was a little
`more recent vintage.
`But geofencing is a virtual boundary. GPS created it. And you can -
`- around these geofence -- the geofence is basically a virtual trip wire. So
`you have a map that's created by GPS. You have a vehicle that's equipped
`with GPS and around the perimeter of the area or it can be a straight line. It
`doesn't have to be a perimeter or a circle or any sort of shape.
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`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
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`When that GPS equipped vehicle hits the trip wire something
`happens. And the something that happens can be quite broad. It could cause
`the vehicle to slow down, to apply the brakes, to turn, to turn off, send a
`notice to some remote area, et cetera.
`And here we're talking about geofencing obviously on the golf
`course.
`I'm switching now to slide 9. And again with the claims of the
`patent, just a brief overview. Here's claim 1.
`JUDGE KINDER: Just to clarify, which patent?
`MR. DICKERSON: This is the '965 patent, Your Honor. On this
`slide 9 are claims 1 and 11.
`The '965 although it's the higher number was the earlier issued
`patent. The '569 is the later. Same numbers, just reversed.
`So we're looking at claims 1 and 11 here. And if you go down, the
`preamble, it's just a system for control of a golf cart on a golf course having
`a motor, motor responding to driver commands, input through an onboard
`controller. More about that later.
`And then I've separated out the elements so that they're a little easier
`to see, but a GPS receiver operable to determine the golf cart position on the
`golf course, limited access map defining an area where you don't want
`people to go, carts to go, a controller, access controller interface with those
`two things.
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`Case IPR2017-02141 (Patent 7,239,965 B2)
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`And then the fourth element is a limited access controller operable to
`override the driver command to move the cart to violate a limited access
`area.
`
`The phrase there override is the term that we've generally been using
`to refer to one concept that is at play here. There's basically two concepts,
`override, which is override, and the other term that has been used in
`discovery and by patent owner's expert Mr. Andrews is feature set.
`And feature set refers to what the cart is made to do by the system,
`stop, slow down, turn, go in reverse, send a notice. Those sorts of things
`that the cart -- that the system does when the cart hits a virtual trip wire has
`been generally referred to as feature set and you'll see that term as we go
`forward.
`Claim 11 is much the same. Again the --
`JUDGE DEFRANCO: Mr. Dickerson.
`MR. DICKERSON: Yes, sir.
`JUDGE DEFRANCO: This is Judge DeFranco. Before we leave
`claim 1 I'm just curious, what's your take on the preamble in claim 1,
`particularly the limitation the motor responding to driver commands input
`through an onboard controller.
`Does that limitation have significance here in our consideration of
`the claim?
`MR. DICKERSON: Yes, I think that it does, Your Honor. We'll get
`into a couple of issues with respect to that. But certainly the phrase onboard
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`controller, we're going to talk about that some. So yes, in petitioner's view,
`Your Honor, it does have some influence here.
`JUDGE DEFRANCO: Okay, thanks.
`MR. DICKERSON: Looking at claim 11 it's basically the same, it
`just changes the fourth element a little bit, but still referring to override.
`And then if we go to claim 10 this is the other independent claim of
`the '965 patent. Claim 21 --
`JUDGE COCKS: Sorry to interrupt. Can you go back to just what
`you said about claim 11? You're saying it refers to override. It doesn't
`actually use the term override, is that right?
`MR. DICKERSON: Yes, it doesn't, Your Honor.
`JUDGE COCKS: So you're saying that whatever feature that's
`recited in claim 11 is synonymous with the override feature of claim 1?
`MR. DICKERSON: Yes. If you look at the fourth element it says
`restricting the performance of a golf cart, driver commands by the golf cart
`motor to inhibit violation of the limited access area by the golf cart.
`Restricting the performance is just another way in my view of saying
`override. The cart wants to do something. It's doing something. It hits the
`virtual trip wire. It's caused to do something else.
`JUDGE COCKS: Thank you.
`MR. DICKERSON: Slide 10, claim 21. In the preamble it refers to
`plural carts. That's a little bit different.
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`And then in the last three elements broken out, operable to
`communicate with a wireless network. And the base station operable to
`communicate with the driver interface unit over the wireless network. The
`base station having an access configuration module operable to define
`limited access areas and to update one or more of those maps with a defined
`limited area. So it's adding the base station, communication with the base
`station.
`And to put it to terms golfing and golf course, the base station could
`be anywhere. It could be in the pro shop. It could be in the general
`manager's -- it could be in the marshal's shed I suppose. It's generally
`remote.
`So as we see the independent claims are -- essentially override this
`one added element here. Here a couple of representative dependent claims.
`I'm on slide 11 now of the '965.
`And so looking at claim 2 it says the system of claim 1 wherein the
`controller overrides the driver input by governing the maximum speed
`commanded through the onboard controller.
`So the override here, what it's doing is governing the maximum
`speed. Governing the maximum speed is in this feature set.
`We've got override. What does the override do? It governs the
`maximum speed. That's a feature. Feature set. That's just the terminology
`that came about during the deposition of Mr. Andrews, patent owner's
`expert.
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`Case IPR2017-02141 (Patent 7,239,965 B2)
`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
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`If you go to number 3, system in claim 1 overrides -- that moves --
`preventing a command that moves -- by the onboard controller to the motor
`that moves the golf cart into a limited access area. This is only override, no
`feature set.
`And you can do the same things for 4 and 5. For example, 5 a
`system of claim 4 wherein the limited access area comprises one or more of
`the golf green, tee, fairway, or hazard. It's just saying we don't want carts
`going on golf green, tee, fairway, or hazards.
`What's on slide 12, Your Honors, is actually this is a little shorthand
`chart that I made for myself during the case just so I could have quick
`reference to what the claims refer to.
`And where a claim only has override that's in regular font. Where
`there's a feature set I set that off in italics. This is again shorthand. This is
`not quotes from the claims.
`But as you look through it you can see that it's override then plus
`various other things the feature set.
`Claim 7 is the feature set is a message to the driver. And that's
`underlined for purposes we'll get to later.
`Claim 12 which is disclaimed, but what claim 12 actually said before
`it was disclaimed was presenting at the golf cart a notice to the driver of
`violation of a limited access area.
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`Case IPR2017-02144 (Patent 7,480,569 B2)
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`So the only part that I want -- and we'll get back to this -- is there's a
`claim that says message to the driver. Sending something to the driver in the
`way of information.
`And there was also in claim 12 something to the golf cart, to the
`driver at the golf cart. Two separate claims.
`I'm switching now to slide 13 and this is overview of the claims of
`the '569. I've got independent claims 1 and 6 up. Again, very similar to
`what we just saw in claim 1.
`One notable difference is that it doesn't include overriding a driver
`command. You don't see that anywhere in this claim. You don't see that
`anywhere in claim 6. So a difference between the claims '569, claim 1 and 6
`at least, actually claims 1 through 12. There's no reference to overriding the
`driver command.
`But as you go through it, again, GPS receiver, map, controller
`operable to apply predetermined control over the motor if it's going
`someplace it doesn't want it to go. Override.
`JUDGE KINDER: The override does come in in dependent claim 2.
`Of the '569 patent.
`MR. DICKERSON: Of the '569. Yes, claim 2 also addresses
`override and some of the dependent claims are the same. For example, 5,
`send notice to the golf course personnel. That's a feature.
`And then going to slide 16 now --
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`Case IPR2017-02141 (Patent 7,239,965 B2)
`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
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`JUDGE KINDER: So let me ask you a general question. Is claim 1
`of the '569 patent, you just mentioned it didn't have a couple of the driver
`override command features. Is it broader? I mean, do we look at claim 1
`differently because it doesn't actually recite override of a driver input? To
`me it seems broader.
`And that if our analysis hinges on a driver and driver being
`somebody physically on a golf cart claim 1 here doesn't have that, does it?
`MR. DICKERSON: It doesn't have that, the driver limitation. I
`think, Your Honor, hopefully by the end of presentation we'll have shifted
`your focus a little bit in terms of construction of golf cart and driver. Golf
`cart is the dog, driver is the tail. And we really want here to focus on golf
`cart because that is much more important than driver in the sense that,
`among other reasons, golf cart's in every claim. Every single claim.
`Driver is only in a few claims, not all the claims. The term driver by
`itself is in very few claims. Driver command is in more claims.
`But in terms of importance to the outcome of this case golf cart is
`much more important than driver. And golf cart really informs the
`appropriate definition of driver.
`Here, looking still --
`JUDGE DEFRANCO: Mr. Dickerson, driver does appear in many
`of the claims of the '965 patent. So what you're saying is, I think as Judge
`Kinder pointed out, so the claims in the '569 patent are broader than the ones
`in the '965 patent. Because of the term driver.
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`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
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`MR. DICKERSON: To the extent that -- yes, they would be
`broader, I believe.
`And again, to be clear the term driver shows up in two ways,
`standing alone, notice to the driver, a message to the driver. And then in
`other claims you've got this driver command. So driver shows up in those
`two ways.
`JUDGE DEFRANCO: So the driver is an additional limitation to the
`'965 patent as opposed to the '569.
`MR. DICKERSON: I'm sorry, would you repeat that? I didn't quite
`hear you.
`JUDGE DEFRANCO: Yes. So the driver limitation is an addition
`to the '965 patent as opposed to the '569 patent which lacks the term driver.
`JUDGE KINDER: Just for the independent claims. The '569 does
`have overriding driver input in the dependent claims. But yes, Judge
`DeFranco mentioned that for the independent claims that's true.
`MR. DICKERSON: Correct.
`JUDGE DEFRANCO: Is that right, Mr. Dickerson?
`MR. DICKERSON: I believe if I understood what you said, Your
`Honor, I believe that's true that you have -- and just let me restate it.
`You have some claims that use the term, the limitation driver
`command. And then you have other claims that use the term driver. And
`then you have claims with the word driver alone.
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`Case IPR2017-02144 (Patent 7,480,569 B2)
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`Then you have claims like claims 1 through 12 of the '569 that I
`don't believe use the term driver command at all. They do use the word
`driver. For example, I'm on slide 16 now claim 4, says it's going to send a
`message to the driver. That's a different limitation than the driver command.
`Also looking at slide 16 in the chart claim 7 of this patent, much like
`the '965 did includes not only a claim directed to message to the driver, but
`also a claim directed to notice to the golf cart to the driver. So separate.
`One goes to the driver, one goes to the golf cart. And again, more on that
`later.
`
`Claim 12 --
`JUDGE COCKS: As you go forward could you maybe summarize
`what distinction you're asking us to make when you're calling out driver
`command and golf cart. You might have said it already, but just indulge me.
`MR. DICKERSON: When I get there -- do you want it now?
`JUDGE COCKS: No, no, take your time, but if you get there at
`some point.
`MR. DICKERSON: And if I don't, remind me, please, but I think
`I've got slides that address that.
`Of course, a person of ordinary skill in the art is always an important
`aspect. What's on slide 16 is what Mr. Breen set forth as the POSITA.
`Mr. Andrews did not set forth a POSITA definition and his
`deposition said that he did not disagree with this. So this is the operative
`definition of a POSITA.
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`Case IPR2017-02144 (Patent 7,480,569 B2)
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`The takeaway here is it's a pretty high level of skill in the art. These
`are engineering types and with experience in various related fields.
`Slide 19 is the transition slide to our discussion on state of the art.
`And on this slide I'll point out the obvious that the relevant state of the art is
`always relevant and is to be considered.
`Interesting that of course Mr. Andrews agreed. That is the testimony
`on the left side.
`Also interesting, the right side, my question to him after he had said
`it was important to understand the state of the art back in 2003 when we're
`sitting here in 2018 I think for his deposition I asked him if he had done any
`research. No.
`He later said he wanted to clarify and talked about his recollection of
`things, but his testimony on state of the art non-validity is based upon his by
`then 15-year-old memory.
`Going now to slide 21 and if you'll recall I said the patents
`themselves describe quite a bit about what's in the state of the art at the time.
`And this is from the '965 patent column 1 lines 46 to 60.
`It's a little dense. I'm not going to read it into the record. It's there.
`What I'm going to do is slide to slide 22 and go down the list of the things
`that one gleans from the patent was state of the art at the time.
`GPS. Golf carts with GPS determine and track their position on the
`golf course.
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`Case IPR2017-02144 (Patent 7,480,569 B2)
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`GPS generated maps of the course which are stored in the system's
`database. Doing the comparison between the location of the cart and the
`course map so that other golfers such as golf course marshal know where
`they are.
`Unauthorized areas. The limited access cart where the cart might
`cause damage to the course, et cetera. Where the cart might cause damage
`to the -- that's also referenced in the background.
`This all comes from the background, by the way. The GPS system
`informs the message to the cart. The golfer, marshal, et cetera, base station
`when the cart travels or approaches one of these unauthorized areas.
`It also talks about storing this data for later analysis. That's not
`particularly relevant here.
`But all of this is acknowledged in the patent to be state of the art.
`If we go to slide 23 I set forth there some testimony. Actually on
`slides 23 and 24 in which Mr. Andrews talked about his work in the late
`nineties with Toyota as being state of the art.
`And what was going on there at that time in the late nineties he was
`in Japan. Toyota had a test car, a GPS test car. They had a test track of
`course.
`The test track was, as he says here, it had a very detailed map of the
`test course. GPS created.
`The test car was equipped with GPS. There was a geofence on the
`test track before -- a distance before it turns. And the system read how fast
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`Case IPR2017-02142 (Patent 7,239,965 B2)
`Case IPR2017-02143 (Patent 7,480,569 B2)
`Case IPR2017-02144 (Patent 7,480,569 B2)
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`the test car was going when it hit that trip wire, the virtual trip wire at a
`particular turn.
`And if the car was going too fast the system would brake it.
`JUDGE KINDER: So why didn't you cite to any of this literature
`then as prior art?
`MR. DICKERSON: I'm sorry?
`JUDGE KINDER: Why didn't you cite to any of this literature as
`prior art in this case? You're giving us general background, but I'm not
`seeing how this helps your case.
`MR. DICKERSON: State of the art, Your Honor, wasn't aware of
`this until I took his deposition that it was ongoing and he testified about it.
`But it's state of the art. And as we said, state of the art is always
`important. You have to understan
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