`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Proceeding No.: IPR2017-02143
`Patent No.: 7,480,569 B2
`
`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 IPR2017-02143
`Patent 7,480,569 B2
`____________
`
`PETITIONER YAMAHA GOLF CAR COMPANY’S
`REPLY BRIEF IN SUPPORT OF
`ITS PETITION FOR INTER PARTES REVIEW
`
`
`
`
`

`

`
`
`
`
`
`Proceeding No.: IPR2017-02143
`Patent No.: 7,480,569 B2
`
`TABLE OF CONTENTS
`
`Page
`
`II. 
`
`B. 
`
`GLOSSARY ............................................................................................................. iii 
`TABLE OF AUTHORITIES .................................................................................... vi 
`I. 
`INTRODUCTION ........................................................................................... 1 
`A. 
`Claim Construction ............................................................................... 2 
`B. 
`Anticipation ........................................................................................... 3 
`C. 
`Obviousness ........................................................................................... 3 
`CLAIM CONSTRUCTION ............................................................................ 4 
`A. 
`The Board May and Should Revise its Preliminary
`Constructions ......................................................................................... 4 
`Patent Owner’s Proposed Claim Constructions Violate Binding
`Precedent ............................................................................................... 5 
`1. 
`There Is No Express Definition of “Golf Cart” In The
`Patent or its File History At All, Let Alone One that
`Limits it to a “Golf Car” with an On-Board “Driver” ................ 6 
`There Is No Disavowal of a Walking or Pull Cart In The
`Intrinsic Record ........................................................................... 6 
`Patent Owner’s Citations To Detailed Embodiments Do
`Not Constitute A Disavowal ....................................................... 6 
`“Golf Cart” vs. “Caddie Cart” ............................................................... 7 
`“Golf Cart” is a Very Broad Term That Encompasses Riding
`and Non-Riding Carts .......................................................................... 12 
`“Golf Cart” vs. “Golf Car” .................................................................. 13 
`Patent Owner’s Argument that the Stated Objectives of the
`“Invention” Indicate a “Golf Cart” Means Only a “Golf Car” Is
`Inconsistent with their Experts’ Testimony and the Intrinsic
`Evidence .............................................................................................. 16 
`“Driver” Does Not Narrow “Golf Cart” to a “Golf Car” .................... 17 
`G. 
`III.  THE STATE OF THE ART AND THE PATENT’S SOLE POINT
`OF NOVELTY – THE “FEATURE SET” .................................................... 20 
`IV.  ANTICIPATION ........................................................................................... 22 
`
`2. 
`
`3. 
`
`C. 
`D. 
`
`E. 
`F. 
`
`
`
`i
`
`

`

`
`
`
`
`
`Proceeding No.: IPR2017-02143
`Patent No.: 7,480,569 B2
`
`C. 
`
`A. 
`The Law on Anticipation ..................................................................... 22 
`B.  What ‘053 Discloses: An “Electric Vehicle” of Which the
`Preferred Embodiment Is a Motorized Walking “Golf Cart,”
`Not A “Caddie Cart” ........................................................................... 23 
`The Patent’s Field of the Art is “Vehicles,” Which is What ‘053
`Discloses .............................................................................................. 25 
`‘053 Anticipates the Challenged Claims ............................................ 26 
`D. 
`Andrews’ Deposition Testimony Confirms Anticipation ................... 26 
`E. 
`V.  OBVIOUSNESS ............................................................................................ 27 
`A. 
`The Challenged Claims are Obvious Because They are Directed
`to a Combination of Conventional Elements to Achieve
`Expected and Predictable Results ....................................................... 27 
`Andrews’ Deposition Testimony Shows Motivation to Combine ...... 27 
`B. 
`The Challenged Claims are Obvious ................................................... 28 
`C. 
`VI.  CREDIBILITY OF THE EXPERTS’ TESTIMONY ................................... 28 
`VII.  CONCLUSION .............................................................................................. 31 
`
`
`
`
`ii
`
`

`

`
`
`
`
`
`Proceeding No.: IPR2017-02143
`Patent No.: 7,480,569 B2
`
`GLOSSARY
`
`
`All references to Exhibits or Papers in this Reply will be to the Exhibit or Paper
`Number as designated in 2017IPR2143 unless otherwise noted.
`
`
`
`‘053:
`
`
`
`
`‘569 Patent:
`
`
`
`File History:
`
`‘894 Provisional:
`
`
`‘938 Patent:
`
`
`‘965 Patent:
`
`
`‘965 File History:
`
`Andrews 1st Decl.:
`
`
`Andrews 2nd Decl.:
`
`
`Andrews xx:yy:
`
`Certified Translation, submitted by Petitioner, of prior
`art reference, Japanese Unexamined Patent Application
`Publication H9-128053, Publication Date May 16, 1997
`[Exhibit Y1003]
`
`U.S. Patent No. 7,480,569 [Exhibit Y1002 in
`2017IPR02143] (the ‘569 Patent is a continuation of the
`‘965 Patent) also referred to herein as “the Patent”
`
`USPTO File History for the ‘569 Patent
`
`Provisional Application No. 60/440,894 [Ex. Y1004],
`filed January 17, 2003, to which the ‘965 Patent claims
`priority
`
`U.S. Patent No. 6,456,938 (one of the references cited in
`the Patent)
`
`U.S. Patent No. 7,239,965 [Exhibit Y1002 in
`2017IPR02143], also referred to herein as “the Patent”
`
`USPTO File History for the ‘965 Patent
`
`[First] Declaration of Scott Andrews [Exhibit 2005],
`which was superseded by Mr. Andrew’s Second
`Declaration [Exhibit 2015]
`
`Second Declaration of Scott Andrews [Exhibit 2015],
`which superseded Mr. Andrew’s [First] Declaration,
`Exhibit 2005]
`
`Citation to Page:Line of the Deposition of Mr. Scott
`
`
`
`iii
`
`

`

`
`
`
`
`
`Breen:
`
`
`
`
`Breen Decl.:
`
`
`Challenged Claims:
`
`
`DeLozier 1st Decl.:
`
`
`DeLozier 2nd Decl.:
`
`
`DeLozier xx:yy:
`
`
`Int. Dec.:
`
`
`
`
`
`Proceeding No.: IPR2017-02143
`Patent No.: 7,480,569 B2
`
`Deposition of Mr. Henry DeLozier, taken by Petitioner
`on November 29 and 30, 2018 Exhibit 1038
`
`Reply Declaration of Kevin Breen , concurrently
`submitted by Petitioner with this Reply
`
`Declaration of Kevin Breen (submitted with the Petition)
`[Exhibit Y1001]
`
`All claims of the Patent except claim 12 (disclaimed by
`PO, and claim 29.
`
`[First] Declaration of Henry DeLozier [Exhibit 2004],
`which was superseded by Mr. DeLozier’s Second
`Declaration, Exhibit 2013]
`
`Second Declaration of Henry DeLozier (Exhibit 2013,
`which superseded Mr. DeLozier’s [First] Declaration,
`Exhibit 2004]
`
`Citation to Page:Line of the Minuscript of the Deposition
`of Henry DeLozier, taken by Petitioner on November 2,
`2018 [Exhibit Y1039]
`
`The Board’s initial Decision Denying Institution [Paper
`17]
`
`
`
`
`Patent Owner:
`
`Pet.:
`
`Petitioner:
`
`POR:
`
`POSITA:
`
`Reh’g Decision:
`
`
`
`
`
`
`
`
`
`
`
`Club Car Company, also referred to as “PO”
`
`Petition for IPR of 7,239,965 [Paper 1]
`
`Yamaha Golf Car Company
`
`Patent Owner’s Response [Paper 32]
`
`Person of Ordinary Skill in The Art
`
`Decision Granting Petitioner’s Requests for Rehearing
`
`
`
`iv
`
`

`

`
`
`
`
`Smith Decl.:
`
`
`Wilson:
`
`
`
`
`
`
`
`
`
`
`Proceeding No.: IPR2017-02143
`Patent No.: 7,480,569 B2
`
`[Paper N. 23]
`
`Declaration of Warren Smith [Exhibit Y1026], the
`certified translator for the English translation of the ‘053
`Reference submitted by Petitioner [Exhibit Y1003]
`
`Declaration of Jeff Wilson [Exhibit 1027], a golf and golf
`course management expert
`
`
`
`v
`
`

`

`
`
`
`
`
`
`Proceeding No.: IPR2017-02143
`Patent No.: 7,480,569 B2
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES 
`DSS Tech. Mgmt., Inc. v. Apple Inc.,
`885 F.3d 1367 (Fed. Cir. 2018) ..................................................................... 28
`Elekta Instrument S.A. v O.U.R. Scientific International, Inc.,
`214 F.3d 1302 (Fed.Cir.2000) ....................................................................... 18
`In re Applied Materials, Inc.,
`692 F.3d 1289 (Fed. Cir. 2012) ..................................................................... 22
`In re Bigio,
`381 F.3d 1320 (Fed. Cir. 2004) ....................................................................... 5
`In re Bond,
`910 F.2d 831 (Fed. Cir. 1990) ....................................................................... 22
`Leapfrog Enters., Inc. v. Fisher–Price, Inc.,
`485 F.3d 1157 (Fed. Cir. 2007) ..................................................................... 28
`LG Elecs. Inc. v. Wi-Lan Inc.,
`IPR2018-00673, 2018 WL 5098898 (PTAB Oct. 11, 2018) .......................... 4
`Merck & Co. v. Teva Pharm. USA, Inc.,
`395 F.3d 1364 (Fed.Cir.2005) ....................................................................... 18
`OrthoPediatrics Corp. v. K2M, Inc.,
`IPR2018-000521, 2018WL3203418 (PTAB June 28, 2018) .......................... 4
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ....................................................................... 7
`Thorner v. Sony Computer Entertainment America LLC,
`669 F.3d 1362 (Fed. Cir. 2012) ....................................................................... 5
`
`RULES 
`Federal Rule of Evidence 408 ................................................................................7, 8
`
`
`
`
`
`
`vi
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`I.
`
`INTRODUCTION
`
`As in the ‘2141IPR, the key issues in this IPR are the construction of the
`
`claim terms “golf cart” and “driver,” and whether the Patent is anticipated by ‘053,
`
`and/or obvious in light of that reference alone or in combination with other prior
`
`art (and in light of the state-of-the-art).1
`
`The evidence, and in particular, the deposition testimony of PO’s experts,
`
`have shown that Petitioner’s claim constructions are correct, and that the Patent is
`
`both anticipated and obvious.
`
`
`1 As the ‘569 Patent is a continuation of the ‘965 Patent, the Specifications for
`
`both the ‘569 and ‘965 Patents are identical (other than the “Related Applications”
`
`portion of the ‘569 Patent). The claims in the ‘569 Patent use slightly different
`
`terminology than the ‘965 claims to refer to the same concept disclosed in their
`
`common Specification. The‘569 Patent claims present no unique issues. The
`
`claim terms “golf cart” and “driver” should be construed the same for both patents.
`
`The testimony of PO’s experts apply equally to both. The bases for invalidity are
`
`substantially identical for both as well, and the ‘596 Patent is invalid for the same
`
`reasons. Accordingly, this Reply is very similar to the Reply filed in ‘2141IPR (as
`
`were PO’s Responses).
`
`
`
`
`1
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`A. Claim Construction
`The correct construction of “golf cart” is not limited to a riding cart, but
`
`includes any motorized wheeled vehicle intended for use on a golf course that can
`
`carry either a passenger or equipment, or both. PO’s construction would limit the
`
`term to only a riding cart -- in other words, a “golf car” (a species of “golf cart”).
`
`As of January 2003 (and also today) “golf cart” was and is a very broad term
`
`that includes both riding and non-riding carts, whereas “golf car” was commonly
`
`used then and now to refer to a riding cart, which is one type of “golf cart.”.
`
`These terms were not otherwise defined or disavowed in the intrinsic record. To
`
`the contrary, the inventors repeatedly used the word “car,” not “cart,” in the ‘894
`
`Provisional (to which the Patent claims priority), clearly indicating to a POSITA
`
`that the use of the term “golf cart” in the Patent is not limited to a ‘golf car.”
`
`[Breen ¶ 43, and ¶¶ 14-64].
`
`The related claim term “driver” is also a very broad term that is not
`
`otherwise defined or disavowed in the intrinsic record. It is not limited to an on-
`
`board “driver” as PO asserts, but is an individual, on-board or off-board, who gives
`
`movement-related commands to a golf cart. Tellingly, where the inventors wanted
`
`to specify something was “on-board” the cart, they knew how to do so (see “on-
`
`board controller” in Claim 1 of the ‘965 Patent). [See also Breen ¶¶ 65-76].
`
`
`
`
`2
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`B. Anticipation
`‘053 discloses every element of the Patent’s claims asserted to be
`
`anticipated: an “electric vehicle” of which the preferred embodiment is a “golf
`
`cart,” and each of the elements of the challenged claims. [Breen ¶ 144 and his
`
`Appendix of ‘569 claim charts]. PO’s arguments, namely: (1) that ‘053 really
`
`discloses only a “caddie cart,” not a “golf cart;” and (2) that the purpose and
`
`objectives of the Patent are inapplicable to “caddie carts;” are thoroughly undercut
`
`by its own experts’ deposition testimony.
`
`The certified translation of ‘053 confirms that it discloses a “golf cart” with
`
`“override” in both manned and unmanned modes. [Id., ¶¶ 116-120]. And, in any
`
`event, PO’s expert confirmed that “override” in manned vehicles was not novel in
`
`2003. [Andrews 39:9-17; 46:8-11; 57:18-59:3].
`
`C. Obviousness
`Andrews’ cross-examination established that even if the Challenged Claims
`
`are not anticipated, they are obvious. In his deposition, he admitted that the only
`
`allegedly new aspect of the Patent over the 2003 state-of-the-art resided in
`
`identifying the “feature set” of specific actions taken by the on-board controller
`
`when the cart activates the geofence’s “virtual tripwire” (such as reducing speed,
`
`stopping, or warning the driver, etc.) [Andrews 178:21–183:7; 185:24-187:14].
`
`He also testified that a POSITA would be presumed, as of January 2003, to be able
`
`
`
`
`3
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`to come up with that feature set for overriding a driver’s commands. [Id., 218:22-
`
`220:1]. His testimony alone establishes obviousness of the claims over ‘053.
`
`Alternatively, the challenged claims are obvious over ‘053 in view of the other
`
`cited references. [See Breen ¶¶ 145-173].2
`
`II. CLAIM CONSTRUCTION
`
`A. The Board May and Should Revise its Preliminary
`Constructions
`
`The appropriate construction of disputed claim terms remains “a live issue,
`
`subject to further briefing” following institution. See, e.g., LG Elecs. Inc. v. Wi-
`
`Lan Inc., IPR2018-00673, 2018 WL 5098898, at *1 (PTAB Oct. 11, 2018).
`
`Preliminary constructions are for the “sole purposes of determining whether to
`
`institute trial” and the Board may revise them as final constructions should “be
`
`based on the full record developed at trial.” See, e.g., OrthoPediatrics Corp. v.
`
`K2M, Inc., IPR2018-000521, 2018WL3203418, at *4.n.2 (PTAB June 28, 2018).3
`
`
`2
`Notably, PO’s “it’s obvious” argument in the ‘2142/2144IPRs regarding the
`
`issue of priority is a significant admission against interest here.
`
`3
`
`This is particularly appropriate here because the evidence upon which those
`
`preliminary constructions were in significant portion based – the Andrews and
`
`DeLozier Declarations and the uncertified translations of ‘053 – have been either
`
`
`
`
`4
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`B.
`
`Patent Owner’s Proposed Claim Constructions Violate
`Binding Precedent
`
`“The words of a claim are generally given their ordinary and customary
`
`meaning as understood by a person of ordinary skill in the art when read in the
`
`context of the specification and prosecution history.” Thorner v. Sony Computer
`
`Entertainment America LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)(citing
`
`Phillips). “There are only two exceptions to this general rule: 1) when a patentee
`
`sets out a definition and acts as his own lexicographer, or 2) when the patentee
`
`disavows the full scope of a claim term either in the specification or during
`
`prosecution.” [Id.]. This “ordinary and customary meaning” is determined as of
`
`the Patent’s critical date (January 2003). [Id.].
`
`In an IPR, “[a]bsent claim language carrying a narrow meaning, the PTO
`
`should only limit the claim based on the specification or prosecution history
`
`when those sources expressly disclaim the broader definition.” In re Bigio, 381
`
`F.3d 1320, 1325 (Fed. Cir. 2004)(emphasis added).
`
`That is not the case here.
`
`
`
`
`
`
`recanted or disavowed.
`
`
`
`
`5
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`1.
`
`There Is No Express Definition of “Golf Cart” In
`The Patent or its File History At All, Let Alone One
`that Limits it to a “Golf Car” with an On-Board
`“Driver”
`
`The Patent and its File History do not explicitly define the term “golf cart.”
`
`[Andrews 117:19-118:14].4 Nor do they define “driver.”
`
`2.
`
`There Is No Disavowal of a Walking or Pull Cart In
`The Intrinsic Record
`
`The Patent and its File History do not expressly exclude or disavow
`
`motorized riderless carts (i.e,, what PO calls a “caddie cart”) from the scope of the
`
`claim term “golf cart.” [Id. ]. There is no intrinsic evidence that the patentee
`
`disavowed the full scope of the term “golf cart.” Nor is a “driver” who may not be
`
`on board disclaimed.
`
`3.
`
`Patent Owner’s Citations To Detailed Embodiments
`Do Not Constitute A Disavowal
`
`The law is clear that detailed embodiments and limitations from the Patent’s
`
`specification cannot be imported into claims absent clear indication, such as a
`
`definition or disavowal. The Federal Circuit has “repeatedly warned against
`
`
`4
`Andrews agreed that because the two patents’ specifications were the same,
`
`that his testimony as to ‘965 patent was applicable also to the ‘569 patent.
`
`[Andrews, 122:1-123:7]. The parties agreed that each deposition could be used in
`
`all four IPRs. [Id. 15:23-16:1].
`
`
`
`
`6
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`confining the claims to [the disclosed] embodiments.” Phillips v. AWH Corp., 415
`
`F.3d 1303, 1323 (Fed. Cir. 2005). Yet that is what PO is attempting to do on this
`
`and other issues. Had the inventors wanted to limit “golf cart” to a “golf car” with
`
`an onboard “driver,” they could have done so, but did not.
`
`“Golf Cart” vs. “Caddie Cart”
`
`C.
`The claim construction (and invalidity disputes) here center around: first,
`
`competing translations (one submitted by Petitioner and two by PO) of ‘053 as to
`
`the terms “golf cart” vs. “caddie cart” and when “override” of the “driver’s
`
`command” occurs; and second, competing expert Declarations that relied
`
`respectively on those translations. [See generally Reh’g Decision at 4].
`
`Petitioner submitted the only properly-certified translation in this matter.
`
`[Ex.Y1003].
`
`PO submitted two separate translations [Exs.2001 and 2003]. The first was a
`
`supposedly “certified” translation [Ex.2001], but the Board has already ruled it was
`
`not properly certified. [Reh’g Decision, page 6, fn. 5]. The second translation
`
`[Ex.2003] was a “quick and dirty” uncertified translation that Petitioner provided to
`
`PO under Federal Rule of Evidence 408 in advance of a settlement meeting before
`
`the IPR Petitions were filed.
`
`
`
`
`7
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`Notwithstanding Petitioner’s many requests, PO has not withdrawn either of
`
`its flawed and improperly-submitted translations.5 This is undoubtedly because
`
`PO’s “it’s-a-caddie-cart-not-a-golf-cart” narrative with respect to ‘053 depends so
`
`heavily on its uncertified translations’ incorrect translation of “golf cart” as “caddie
`
`cart.”6
`
`As part of its “caddie cart” contention (for both claim construction and
`
`invalidity), PO needed to establish that “caddie cart” was a commonly used term in
`
`January 2003 to refer to a non-riding cart, and that therefore a “caddie cart” was
`
`not a “golf cart.” In support, PO submitted two DeLozier Declarations. In both
`
`Declarations, he testified:
`
`19. While golf carts have long been the dominant form of
`motorized vehicles used on golf courses in the United States, I am
`aware of another type system know generally as a “caddie cart,”
`which has been implemented on a limited basis. As of January 2003,
`one in the industry would have understood a “caddie cart” to
`
`
`See Smith Decl. ¶¶ 34-47 for a thorough explanation of just how flawed are
`5
`
`these translations.
`
`6
`
`That PO would submit a translation that was not only uncertified, but also
`
`provided to PO under FRE 408, suggests that PO appreciates its positions on claim
`
`construction and invalidity are weak, such that it needed to rely on them.
`
`
`
`
`8
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`function primarily as an automated push cart intended solely to
`carry the golfer’s equipment.
`
`[DeLozier 1st and 2nd Decls. ¶ 19] (emphasis added). This testimony was essential
`
`to PO’s arguments on claim construction (and invalidity, too) that in January 2003,
`
`a POSITA would have understood that “caddie cart” was commonly used and
`
`understood to refer to a motorized rider-less cart; that a “caddie cart” was not a
`
`“golf cart;” and that ‘053 disclosed a “caddie cart,” not a “golf cart.” [See Andrews
`
`2nd Decl. at ¶ 93; Andrews 230:1-231:23(where Andrews testified that he
`
`interpreted Paragraph 19 this way in formulating his opinions)].
`
`At his Deposition, however, DeLozier testified that he had never heard the
`
`term “caddie cart” until PO’s lawyers asked him about it:
`
`Q. You use in your first and second declaration the term
`
`“caddie cart,” correct?
`
`A. Yes.
`
`Q. When did you first hear that term?
`
`A.
`
`Q.
`
`A.
`
`I was asked about it by counsel.
`
`That was the first time you heard that term?
`
`Yes.
`
`
`
`
`
`
`9
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`[DeLozier 27:15-22].7
`
`Before that testimony, PO continued to press its “caddie cart” narrative, even
`
`after it “disavowed” the two uncertified translations it had submitted and relied
`
`upon for that narrative.8 Notwithstanding this “disavowal,” PO’s Response
`
`continues to “rely” extensively on its translations, and on Mr. DeLozier’s
`
`Declaration testimony.
`
`Indeed, PO uses the term “caddie cart” (or “caddy cart”) 93 times in its
`
`‘2141/2143 Responses, and avoided the term “golf cart” almost entirely. Merely
`
`substituting “golf cart” for “caddie cart” in the POR exposes the weakness of its
`
`arguments.
`
`To further show the unreasonableness of PO’s “a-caddie-cart-is-not-a-golf
`
`cart” argument, Andrews was shown the following figures from two patents
`
`[Exs. Y1040 and Y1041] for motorized carts in which the golfer could either walk
`
`behind or ride on the cart:
`
`
`7
` Mr. Wilson also testified that he had not heard the term “caddie cart” until
`
`asked about it by Petitioner’s counsel. [Wilson ¶¶ 27 and 28].
`
`8
`
`See POR (at 14): “For the purposes of this IPR, and to simplify the Board’s
`
`review, Patent Owner will rely on Petitioner’s translation of the ’053 Application.”
`
`
`
`
`10
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`
`
`
`
`He was asked if the vehicles depicted were a “golf cart” or a “caddie cart.”
`
`Given his and PO’s proposed construction of “golf cart,” Andrews tried to avoid
`
`answering the question, but ultimately had to take the untenable position that the
`
`above-shown vehicles are a “caddie cart” when the golfer walked, but are a “golf
`
`cart” when ridden by the golfer. [Andrews 103:21-106:16; 109:10-111:14 ].
`
`Not surprisingly, both of these patents call the vehicles depicted a “golf
`
`cart,” and the term “caddie cart” is not used in either. One of the patents also uses
`
`the term “drive” when referring to what the golfer does to the cart in both walking
`
`and riding modes. [Ex.Y1041; Andrews 111:15-112:3].
`
`
`
`
`11
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`D.
`
`“Golf Cart” is a Very Broad Term That Encompasses
`Riding and Non-Riding Carts
`
`The issue in this case is the BRI of the term “golf cart.” That term, as
`
`understood by a POSITA today and in January 2003, is a very broad term, as this
`
`word chart (Ex.Y10319) shows:
`
`
`
`
`
`Mr. DeLozier was shown this chart at his Deposition and asked to revise it to make
`
`the chart correct in his view. He made only the immaterial revisions shown below
`
`(Ex.Y1032):
`
`
`See Wilson ¶¶ 23-28; Breen ¶¶ 31-34.
`9
`
`12
`
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`
`
`Note that when given free “pen,” he did not insert the term “caddie cart” anywhere
`
`on this chart even though he continued to testify that the term “golf cart” only
`
`refers to a “golf car” and not to what he calls a “caddie cart.”
`
`Significantly, both of the parties’ golf industry experts agreed that “golf
`
`cart” is a very broad term that has long been in common usage. [DeLozier 88:2-4;
`
`Wilson ¶ 24].10
`
`“Golf Cart” vs. “Golf Car”
`
`E.
`There is yet another reason why PO’s proposed construction for “golf cart”
`
`is flawed. PO says “golf cart” means only a riding cart: “a motorized cart for
`
`carrying golfers or other passengers over a golf course.” [POR at 4-5]. The
`
`documentary evidence and testimony, however, have shown that PO’s proposed
`
`
`See, also, Exhs. Y1013, Y1040-Y1043; Breen ¶¶ 31-34].
`10
`
`
`
`
`13
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`construction is actually describing what is (and was in January 2003) commonly
`
`known as a “golf car.”11
`
`For example, this is a Figure from a Club Car patent filed January 28, 2003,
`
`entitled “Golf Car.” It shows what PO now contends is the only vehicle that can
`
`be called a “golf cart.”
`
`
`See, e.g., Exs.Y1033-Y1037; Breen ¶¶ 36-37. Mr. DeLozier was not aware
`11
`
`of any of this evidence (he had not looked for such evidence about the common
`
`usage of “golf cart” and “golf car” in 2003; he merely relied on his current memory
`
`of how things were in 2003). [DeLozier 23:2-9]. Because he had done no
`
`research, and was solely relying on his 15-years old memory, he incorrectly
`
`testified that to his recollection, the term “golf car” had not come into common
`
`usage until after January 2003. [Id.].
`
`
`
`
`14
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`It is clear that a “golf car” has long been commonly understood to be only
`
`one species of a “golf cart.” In this regard, it bears noting that PO is Club Car
`
`Company and Petitioner is Yamaha Golf Car company. [See also Ex.Y1034 (PO’s
`
`website in early 2003, which repeatedly uses the term “golf car” to refer to its
`
`riding carts, whereas the term “golf cart” is not used at all)].12
`
`What is perhaps most problematic for PO on this issue, however, is that in
`
`the ‘894 Provisional, the term “car” is used extensively (e.g., “PGA Smart Car
`
`Test Track Demonstration,” “car performance,” “in-car demo ideas,” “smart car
`
`interface,” “GPS location of the car,” and on and on). Clearly, if the Patent’s
`
`inventors had wanted “golf cart” to mean only a riding cart (i.e., a golf car), they
`
`knew how to do so. The use of “golf cart” rather than “golf car” was
`
`intentional.(most likely because they hoped to be able to assert infringement by
`
`more than just golf cars). As the Provisional is part of the intrinsic record, this is
`
`
`12
`This common usage of “golf cart” as a general term, and “golf car” and
`
`“riding cart” as types of “golf cart,” continues today. See also, Exhs. Y1036 and
`
`Y1037 wherein an article in Golf Digest uses the term “golf carts” generically, and
`
`PO’s Press Release about the article uses the term “golf car” to refer to a “riding
`
`cart.” [See Breen ¶¶ 39-42].
`
`
`
`
`
`
`15
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`compelling evidence that a POSITA would understand that “golf cart” included
`
`more than just “golf cars.”
`
`Petitioner’s sub silencio attempt to morph “golf cart” into “golf car” should
`
`not be countenanced.
`
`F.
`
`Patent Owner’s Argument that the Stated Objectives of the
`“Invention” Indicate a “Golf Cart” Means Only a “Golf
`Car” Is Inconsistent with their Experts’ Testimony and the
`Intrinsic Evidence
`
`The POR argues that “golf cart” really means a “golf car” because the stated
`
`objectives of the invention applied only to rider carts (i.e,, a golf car), but not to
`
`riderless carts. But, DeLozier did a complete about-face on this issue, fatally
`
`undercutting PO’s position. As DeLozier admitted, the stated objectives apply to
`
`golf carts in general, including riderless carts. [DeLozier 69:4-71:6; 78:3-79:1;
`
`82:17-83:21;]. This is reason enough to reject PO’s construction.
`
`In addition to the ‘894 Provisional discussed above, other important intrinsic
`
`evidence such as prior art cited on the face of the Patent supports Petitioner’s
`
`contention that a POSITA’s understanding of “golf cart” would not be limited to a
`
`manned vehicle (i.e., a “golf car”). See, e.g., the “References Cited” section of the
`
`Patent which includes the ‘938 Patent ( that describes prior art relating to “locating
`
`
`
`
`16
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`[a] GPS antenna on a self-propelled or pull-type cart”) [1:55-59; emphasis
`
`added].13
`
`PO also overlooks that the Patent’s specification expressly states:
`
`In alternative embodiments, the golf cart limited
`access controller and management system
`described herein may be used to control the
`movement of other types of vehicles … to improve
`the efficiency, safety and security of vehicle use.
`
`(Patent, 7:49-54) (emphasis added). Note that the reference to “other types of
`
`vehicles” is aligned with the Patent’s “field of the invention.” If PO’s proposed
`
`construction was correct, this statement would have referred to “other types of golf
`
`carts,” not “other types of vehicles.”
`
`“Driver” Does Not Narrow “Golf Cart” to a “Golf Car”
`
`G.
`The proper construction of “driver” is dependent on the proper construction
`
`of “golf cart.” Once it is concluded that “golf cart” is not limited to a “golf car,”
`
`
`See also, Breen ¶¶ 58-64 (discussing examples of industry usage of “push-
`13
`
`pull” stick “golf carts;” patent classifications for “golf carts” that include a
`
`“manually drawn vehicle for moving small articles;” and discussing relevant ANSI
`
`Standards on this issue).
`
`
`
`
`17
`
`

`

`Proceeding No.: IPR2017-02143
`
`Patent No.: 7,480,569 B2
`
`
`
`then ipso facto “driver” is not limited to an on board driver of a “golf car.”
`
`Conversely, because “driver” is not limited to an on-board “driver” (whereas “on-
`
`board controller” is), it cannot be disputed that when the inventors wanted to
`
`specify that a claim element was limited to being “on-board,” they expressly did
`
`so. PO’s argument that “driver” must refer to an on-board individual, and then
`
`bootstrap that as support for its “golf-cart-really-means-golf-car” argument, would
`
`render “on-board” in relation to “controller” superfluous, which is disfavored.
`
`Merck & Co. v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1372 (Fed.Cir.2005) (“A
`
`claim construction that gives meaning to all the terms of the claim is preferred over
`
`one that does not do so.” (citations omitted)); Elekta Instrument S.A. v O.U.R.
`
`Scientific International, Inc., 214 F.3d 1302, 1307 (Fed.Cir.2000)(construing claim
`
`to avoid rendering the 30 degree claim limitation superfluous).
`
`In addition, the commonly understood meaning of “drive” and “driver” as
`
`pertains to vehicle operation in 2003 is very broad, and is not limited to an on
`
`board driver. [See Breen ¶¶ 65-76]. And, as discussed above, the words “drive”
`
`and “driver” are commonly used with motorized riderless carts. Importantly, the
`
`disclosure of a riding “driver” in the preferred embodiments in the specification
`
`does not exclude or affirmatively disclaim from the claim scope a vehicle
`
`controlled by a non-r