Trials@uspto.gov
`571-272-7822
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`Paper No. 63
`Filed: April 2, 2019
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`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 IPR2017-02144
`Patent 7,480,569 B2
`____________
`
`
`Before JOSIAH C. COCKS, CARL M. DEFRANCO, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`KINDER, Administrative Patent Judge.
`
`
`
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) AND 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`571-272-7822
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`
`
`
`Paper No. 63
`Filed: April 2, 2019
`
`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 IPR2017-02144
`Patent 7,480,569 B2
`____________
`
`
`Before JOSIAH C. COCKS, CARL M. DEFRANCO, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`KINDER, Administrative Patent Judge.
`
`
`
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) AND 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`IPR2017-02144
`Patent 7,480,569 B2
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`
`I. INTRODUCTION
`Yamaha Golf Car Company (“Petitioner”) filed a Petition pursuant to
`35 U.S.C. §§ 311–19 to institute an inter partes review of claims 11, 12, 17–
`19 of U.S. Patent No 7,480,569 B2, issued on January 20, 2009 (Ex. 1002,
`“the ’569 patent”). Paper 1 (“Pet.”). Club Car, LLC (“Patent Owner”) filed
`a Preliminary Response. Paper 9 (“Prelim. Resp.”). Pursuant to our request
`(Paper 12) the parties each filed a supplemental claim construction brief.
`See Paper 13 (Patent Owner’s brief), Paper 15 (Petitioner’s brief).
`Pursuant to 35 U.S.C. § 314 and 37 C.F.R. § 42.4(a) we issued an
`Initial Decision (“Dec.”) on April 4, 2018, instituting inter partes review of
`claim 12, but denying Petitioner’s challenge with respect to claims 11 and
`17–19. Paper 17, Dec., 2, 17.
`On May 4, 2018, Petitioner filed a request for rehearing of our Initial
`Decision pursuant to 37 C.F.R. § 42.71(d). Paper 19.
`On June 26, 2018, we granted Petitioner’s Request for Rehearing
`(Paper 19). Paper 26 (“Rehearing Dec.”). In the Rehearing Decision we
`reasoned that we overlooked material fact disputes and competing witness
`testimony regarding the disclosure in the ’894 Provisional (see below),
`which at the institution stage should have been viewed in a light most
`favorable to Petitioner rather than Patent Owner. Rehearing Dec. 4 (citing
`37 C.F.R. 42.108(c)). We then determined that considering the competing
`expert testimony in a light most favorably to Petitioner, that “Petitioner
`presents a reasonable likelihood of prevailing” as to claim 11. Id. at 7.
`Based on the Supreme Court’s decision in SAS Inst. Inc. v. Iancu, 138 S.Ct.
`1348, 1359–60 (2018), and the Office’s Guidance on the Impact of SAS on
`AIA Trial Proceedings, which states that “if the PTAB institutes a trial, the
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`PTAB will institute on all challenges raised in the petition”
`(https://www.uspto.gov/patents-application-process/patent-trial-and-appeal-
`board/trials/guidance-impact-sas-aia-trial), we instituted review based on all
`grounds and claims as set forth in the Petition. Rehearing Dec. 10. We also
`noted that:
`
`On April 27, 2018, Club Car (Patent Owner) filed a
`statutory disclaimer under 35 U.S.C. § 253 for claim 12 of the
`’569 patent.
` See IPR2017-02144, Paper 22, Exhibit B
`(Disclaimer of claim 12). Because claim 12 has been disclaimed,
`we need not issue a final written decision addressing the
`patentability of this claim.
`Id. at 10, n.9. Accordingly, this Final Decision does not address claim 12,
`which has been disclaimed.
`After institution of trial, Patent Owner filed a Patent Owner Response
`(Paper 37, “PO Resp.”), to which Petitioner replied (Paper 48, “Pet. Reply”).
`Patent Owner also filed a Sur-Reply (Paper 53, “PO Sur-Reply”).
`Patent Owner filed a Motion to Exclude evidence (Paper 55), to which
`Petitioner opposed (Paper 57), which Patent Owner replied (Paper 58).
`Oral argument was conducted on February 14, 2019, and the transcript
`of the hearing has been entered as Paper 62 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 318(a). After considering the
`evidence and arguments of both parties, and for the reasons set forth below,
`we determine that Petitioner has not shown, by a preponderance of the
`evidence, that claims 11 and 17–19 of the ’569 patent are unpatentable. We
`deny Patent Owner’s Motion to Exclude as moot.
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`II. BACKGROUND
`A. The ʼ569 patent (Ex. 1002)
`The ʼ569 patent is titled “Method and System for Golf Cart Control.”
`Ex. 1002, [54]. The ’569 patent claims priority from U.S. Provisional
`Application No. 60/440,894 (“the ’894 Provisional”), filed January 17, 2003.
`Id. at [60], 1:6–9.
`As stated in the ’569 patent, “[t]he present invention relates in general
`to the field of vehicle control, and more particularly to a method and system
`for control of a golf cart based on location of the golf cart.” Id. at 1:20–22.
`The system and method use a golf cart’s GPS position on a golf course for
`monitoring the location of and controlling golf carts “to preempt or
`otherwise reduce damage from golf cart movement” in certain at-risk
`portions of a golf course. Id. at 2:3–5.
`As described in the ’569 patent, “[g]olf course owners generally make
`a substantial financial investment in a golf course in order to develop and
`maintain the appearance and quality of play.” Id. at 1:25–27. In a relatively
`short period of time, “a thoughtless golfer can create considerable damage to
`sensitive golfing areas, such as greens, simply by driving a golf cart in the
`wrong place, such as locations having wet turf that [are] particularly
`susceptible to damage.” Id. at 1:43–47. “Inattentive and even malicious
`golf cart drivers can cause even greater amounts of damage and also present
`a safety hazard by driving too fast or recklessly near other golfers or natural
`hazards.” Id. at 1:47–51. Based on these problems faced in the art, the ’569
`details that “a need has arisen for a method and system which applies a golf
`cart’s GPS position on a golf course to preempt or otherwise reduce damage
`from golf cart movement.” Id. at 2:3–5. Another stated objective is to
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`define areas of a golf course where golf carts have limited access and
`movement is restricted. Id. at 2:5–9.
`The ’569 patent solves the problems identified in the prior art by,
`among other things, incorporating a controller that “automatically imposes
`restrictions on a golf cart’s movement . . . if the golf cart is positioned to
`enter a limited access area.” Id. at 2:54–59. As depicted in Figure 1 below,
`a golf cart control system is used to implement these concepts.
`
`
`
`Figure 1 of the ’569 patent above “depicts a functional block diagram of a
`golf cart having a limited access controller.” Id. at 3:36–37. Movement of
`golf cart 10 is restricted “in response to driver inputs,” “if the movement
`violates a limited access area of the golf course.” Id. at 4:4–7. “A limited
`access controller 12 determines limited access area violations by comparing
`golf cart position determined from a GPS receiver 14 with limited access
`areas defined in a limited access map 16.” Id. at 4:7–11. In one
`embodiment, when golf cart 10 approaches “a predetermined distance of
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`green 18, limited access controller 12 reduces the maximum available speed
`of golf cart 10 and notifies the driver with a message and/or audible alert if
`the projected path of golf cart 10 will traverse green 18 or approach 20.” Id.
`at 4:49–53. Further, “[i]f the GPS position of golf cart 10 enters into
`approach 20, the available speeds of golf cart 10 are restricted, such as to
`selections like reverse gear that will result in a velocity vector out of the
`approach without crossing into green 18.” Id. at 4:56–60.
`
`B. The Challenged Claims
`Petitioner makes clear that it does not challenge any of independent
`claims 1, 6, or 13 of the ’569 patent, rather only claims that depend, directly
`or indirectly, from claims 6 and 13. Specifically, claim 11 depends from
`claim 6, and claims 17–19 depend from claim 13. See, e.g., Pet. 16–22
`(mapping limitations of base claim 6 and intermediate claim 10 before
`reaching claim 11, but explaining that “[o]nly Claim 11 is challenged here”);
`id. at 23–26 (mapping limitations of base claim 13 and dependent claim 17
`but clarifying that “[o]nly Claim 17 is challenged here”).
`The unchallenged base claims 6 and 13 are directed to a “method” and
`“system” for controlling golf cart movement relative to a “predetermined
`area” or a “limited access area” of a golf course. See Ex. 1002, 8:17–25,
`8:51–63. Challenged claim 11 further adds an additional feature of disabling
`golf cart movement toward a predetermined area, except in a reverse
`direction. Id. at 8:44–46. Challenged claims 17–19 are directed to
`additional features of the controller and how it interfaces with the driver of
`the cart and a base station that defines the limited access areas and issues
`commands to the controller. Id. at 9:10–10:11.
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`Claims 13 and 17, both reproduced below, are illustrative of the
`claimed golf cart control system:
`13. A system for control of plural golf carts on a golf course, the
`system comprising:
`a position determining device associated with each golf cart and
`operable to determine a position of an associated golf cart;
`a map defining limited access areas;
`a controller associated with each golf cart and interfaced with the
`position determining device and map, the controller operable to
`limit the performance of driver commands to move an associated
`golf cart based at least in part on a position of the associated golf
`cart relative to a limited access area.
`Ex. 1002, 8:51–63.
`17. The system of claim 13 further comprising the driver
`interface unit associated with each golf cart and operable to
`communicate an alarm to a base station of a controller limiting
`the performance of a driver command.
`Id. at 9:10–13.
`
`C. Related Proceedings
`Petitioner and Patent Owner identify a related litigation in the
`Southern District of Georgia involving the ʼ569 patent: Club Car, LLC v.
`Yamaha Golf-Car Company, Case No. 1:17-cv-00034. Pet. 1; Paper 4, 1.
`Patent Owner also identifies a related petition (IPR2017-02143) challenging
`claims of the ’569 patent and two additional petitions (IPR2017-02141 and
`IPR2017-2142) challenging claims of related U.S. Patent No. 7,239,965 B2.
`Paper 4, 1.
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`D. Real Party-in-Interest
`Petitioner certifies that the real party-in-interest for this Petition is
`Yamaha Golf Car Company. Pet. 1. Patent Owner certifies that Club Car,
`LLC is the real party-in-interest. Paper 4, 1.
`
`E. References
`Petitioner relies on the following reference: U.S. Patent Publication
`No. 2006/0052918 A1, filed March 18, 2003,1 published March 9, 2006 (Ex.
`1003, “the ’918 Publication”).
`Petitioner also relies on the Declaration of Kevin C. Breen (Ex. 1001).
`Patent Owner, in turn, relies on the Declaration of Henry DeLozier
`(Ex. 2007) as well as the Declaration of Scott Andrews (Ex. 2009). The
`parties rely on other evidence and exhibits as addressed in the analysis
`below.
`F. Grounds Asserted
`Petitioner challenges the patentability of claims 11, 12, and 17–19 of
`
`the ʼ569 patent on the following grounds (Pet. 3):
`
`Reference
`
`’918 Publication
`
`’918 Publication
`
`Basis
`
`§ 102(e)
`
`Claim(s)
`Challenged
`11
`
`§ 103(a)
`
`12 and 17–19
`
`
`
`1 Petitioner contends “[t]he latest conceivable priority date for the ‘918
`Publication – i.e., March 18, 2003 (i.e., the filing date of the ‘046
`Application, which was published as the ‘918 Publication) – antedates the
`January 9, 2004 priority date of the Challenged Claims.” Pet. 16. Thus,
`Petitioner contends “[t]he ‘918 Publication therefore qualifies as prior art
`consisting of patents or printed publications under 35 U.S.C. §§102(e)(1)
`and 103.” Id.
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`III. ANALYSIS
`A petition must show how the construed claims are unpatentable
`under the statutory ground it identifies. 37 C.F.R. § 42.104(b)(4). Petitioner
`bears the burden of proving unpatentability of the challenged claims, and the
`burden of persuasion never shifts to Patent Owner. Dynamic Drinkware,
`LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015). To
`prevail, Petitioner must establish the facts supporting its challenge by a
`preponderance of the evidence. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d).
`A. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are
`interpreted according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. See 37 C.F.R. § 42.100(b);
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016).
`Petitioner proposes the construction of two limitations –– “golf cart”
`and “driver.” Pet. 4–6. Patent Owner focuses its analysis on these same two
`limitations and also proposes that we construe “velocity.” PO Resp. 5–14.
`Patent Owner also recognizes, however, “that no construction of the
`disputed terms is necessary.” Id. at 6; PO Sur-Reply 2 (“no construction of
`the disputed claim terms—‘golf cart’ or ‘driver’—is necessary”). In its
`Reply Brief, Petitioner also agrees that the constructions for terms “golf
`cart” and “driver . . . are irrelevant in this IPR.” Pet. Reply 4 (“Board has
`not construed ‘golf cart’ or ‘driver’ in this IPR, and it need not.”).
`We agree with the parties that none of the disputed terms requires an
`express construction in reaching a final decision on any of Petitioner’s
`challenges. See Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361
`(Fed. Cir. 2011) (“[C]laim terms need only be construed ‘to the extent
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`necessary to resolve the controversy’”) (quoting Vivid Techs., Inc. v. Am.
`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
`B. Principles of Law
`1. Anticipation
`To establish anticipation, each and every element in a claim, arranged
`as recited in the claim, must be found in a single prior art reference. Net
`MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008). “To
`anticipate a claim, a prior art reference must disclose every limitation of the
`claimed invention, either explicitly or inherently.” In re Schreiber, 128 F.3d
`1473, 1477 (Fed. Cir. 1997).
`2. Obviousness
`A claim is unpatentable under § 103(a) if the differences between the
`claimed subject matter and the prior art are such that the subject matter, as a
`whole, would have been obvious at the time the invention was made to a
`person having ordinary skill in the art to which said subject matter pertains.
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
`obviousness is resolved on the basis of underlying factual determinations,
`including: (1) the scope and content of the prior art; (2) any differences
`between the claimed subject matter and the prior art; (3) the level of skill in
`the art; and (4) where in evidence, so-called secondary considerations.2 See
`Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966).
`
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`2 Neither party has offered evidence of secondary considerations in this
`proceeding.
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`C. Patent Owner’s Priority Claim for Claim 11
`As mentioned above, the ’569 patent claims priority to an earlier
`provisional application, the ’894 Provisional, filed January 17, 2003.
`Ex. 1002, (60), 1:6–9. Whether the challenged claims of the ’569 patent are
`entitled to priority to the ’894 Provisional is relevant here because Patent
`Owner relies on the priority claim in order to antedate the ’918 Publication
`(priority date of March 18, 2003) proffered by Petitioner as evidence of
`anticipation of claim 11 pursuant to 35 U.S.C. § 102(e)(1) and § 103. PO
`Resp. 19–24. Patent Owner does not challenge Petitioner’s contentions (Pet.
`11–14) that claims 17–19 each have a limitation that is not supported by the
`’894 Provisional. See generally PO Resp. Thus, based on the final record
`before us, the ’918 Publication is prior art with respect to claims 17–19.3
`Pet. 11–14. Below, we address the parties’ contentions with respect to the
`priority date of claim 11.
`At the outset, we note that we originally denied institution of the
`ground challenging claim 11 because we determined that “the ’918
`Publication does not qualify as prior art against claim 11,” and as such,
`“Petitioner has thus not established a reasonable likelihood of prevailing on
`the basis that claim 11 is anticipated by the ’918 Publication.” Dec. 12. For
`the reasons discussed above, we later instituted trial of claim 11. We base
`this Final Decision on the record developed during trial that is now before
`us.
`
`
`3 Based on the final record before us, we accept Petitioner’s contention that
`claims 17–19 are entitled to a priority date no earlier than January 9, 2004,
`i.e., the filing date of U.S. Application No. 10/754,916 that was continued as
`U.S. Application No. 11/758,702, which issued as the ’569 patent. See Ex.
`1002, (21), (60).
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`1. Petitioner’s Contentions for Claim 11
` In its Petition, Petitioner relies on the March 18, 2003 filing date of
`the ’918 Publication in order to antedate what it contends is the earliest
`priority date of the challenged claims—the application filing date of
`January 9, 2004 for the ’569 patent. Pet. 14. Presuming that Patent Owner
`might assert the earlier priority claim to the January 17, 2003 filing date of
`the ’894 Provisional, Petitioner argues that “the priority claim to the
`‘894 Provisional must be disregarded . . . because the subject matter of the
`Challenged Claims was not disclosed in the manner required by 35 U.S.C.
`§ 112 in the ’894 Provisional.” Id. at 8. “For the non-provisional utility
`application to be afforded the priority date of the provisional application
`. . . the written description of the provisional must adequately support the
`claims of the non-provisional application” in the manner set forth by
`35 U.S.C. § 112. New Railhead Mfg. LLC v. Vermeer Mfg. Co., 298 F.3d
`1290, 1294 (Fed. Cir. 2002). Here, Petitioner argues that Patent Owner’s
`priority claim must fail “because at least one element of each Challenged
`Claim is not adequately disclosed by the ‘894 Provisional,” including claim
`11. Pet. 10–11.
`Petitioner contends that the ’894 Provisional lacks support for the
`claim 11 limitation “wherein disabling golf cart movement towards the
`predetermined area further comprises disabling golf cart movement except in
`a reverse direction.” Pet. 10. Petitioner argues that “[t]here is no mention
`of limiting a cart’s movement to ‘reverse’ movement as a cart control
`action.” Id.
`In its Reply Brief, Petitioner further argues that the ’894 Provisional is
`a “disjointed, hodge-podge” of information that requires putting it all
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`together in an “impermissible obviousness-type argument.” Pet. Reply 10.
`Petitioner alleges that the ’894 Provisional consists of multiple distinct
`documents that make it suspect as a source for § 112 support. Id. at 10–12.
`Petitioner argues that there is no actual or inherent disclosure in the ’894
`Provisional of cart movement that must be disabled in every respect except
`reverse. Id. at 13. Petitioner similarly argues that there is no actual
`disclosure in the Provisional of a control action wherein movement is
`disabled in all respects except reverse, as required by the claim. Id. at 14.
`Petitioner characterizes Patent Owner’s purported argument as
`requiring a person of ordinary skill in the art to “infer the existence of this
`limitation from: (1) language disclosing progressively slowing then stopping
`a cart as an automatic control action; and (2) a separate disclosure that the
`cart may be operated in reverse, unrelated to any automatic control action.”
`Id. at 14 (emphases omitted). Further, Petitioner argues that “the disclosure
`of a reverse gear does not actually teach disabling movement (let alone in all
`respects except in reverse), and therefore is not a sufficient Section 112
`disclosure.” Id. (“The reverse gear is never actually discussed in connection
`with automatic control actions at all.”) (emphases omitted). Petitioner
`contends that the arguments Patent Owner makes are obviousness type
`arguments, which are not sufficient for a § 112 disclosure. Id. at 16.
`2. Patent Owner’s Contentions for Claim 11
`In relying on its priority claim, Patent Owner asserts only that the
`’918 Publication is not prior art with respect to challenged claim 11. See
`generally PO Resp. By seeking to antedate the ’918 Publication, Patent
`Owner bears the burden of production (i.e., coming forward with evidence)
`to show entitlement to the priority date for the ’894 Provisional. See
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`Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1379–80
`(Fed. Cir. 2015). To meet its burden, Patent Owner points to detailed
`descriptions in the ’894 Provisional as support for the disputed claim
`limitations, and submits a declaration from Scott Andrews as evidence of
`what a skilled artisan would have understood from these descriptions.
`PO Resp. 19–24 (citing Ex. 2009).
`Also, because challenged claim 11 necessarily includes limitations
`from base claim 6, as well as intervening claim 10, Patent Owner submits
`proof of how the ’894 Provisional provides adequate written description
`support for those claims. Id. at 21 n.4 (citing Ex. 2009 ¶¶ 44–47). Petitioner
`does not dispute that the ’894 Provisional provides adequate written
`description support for claims 6 and 10. From our review of the final record,
`we are persuaded that Patent Owner has met it burden of showing sufficient
`support in the ’894 Provisional for base claim 6 and intervening claim 10.
`Thus, we begin our analysis of the priority issue with the claim in dispute,
`i.e., claim 11.
`Patent Owner contends that the ’894 Provisional maintains support for
`all claim limitations, including the claim 11 limitation “wherein disabling
`golf cart movement towards the predetermined area further comprises
`disabling golf cart movement except in a reverse direction.” PO Resp. 19–
`24. Patent Owner argues that other sections of the ’894 Provisional not
`addressed by Petitioner support this disputed limitation. Id. at 20. Patent
`Owner’s analysis provides citations to portions of the ’894 Provisional it
`contends support the disputed limitation. Id. at 22–24.
`Addressing the disclosure of reverse operation, Patent Owner notes
`that the ’894 Provisional describes “a ‘Curtis 1510 controller’ that ‘is used to
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`regulate motor performance, to enable configuration functionality,’” and this
`“controller sets configuration settings for several system variables, including
`‘PEDAL UP MODE,’ ‘SPEED SETTING,’ and ‘FAST ACCEL.’”
`PO Resp. 22 (quoting Ex. 1004, 10). The controller also logs information
`for other system variables such as “THROTTLE” and “FOOT INPUT.” Id.
`(quoting Ex. 1004, 12). Most “[s]ignificantly for claim 11, the ’894
`Provisional specifies that the Curtis 1510 controller includes a configuration
`setting for ‘REVERSE SPEED’ separate from the maximum forward speed
`settings, ‘M1 MAX SPEED,’ ‘M2 MAX SPEED,’ ‘M3 MAX SPEED,’ and
`‘M4 (HIGH) MAX SPEED.’” Id. (quoting Ex. 1004, 12).
`Patent Owner points out that “[t]he ’894 Provisional also discloses
`multiple levels of control commands, such as first issuing a warning to the
`vehicle driver and initially slowing the speed of the vehicle.” PO Resp. 22
`(quoting Ex. 1004, 30). Patent Owner notes that when a driver continues to
`move towards a restricted access area, the control system warns the user that
`“your car will continue to slow down until you return to the course.” Id.
`Thus, setting the maximum speed to zero stops the vehicle from further
`movement towards the restricted area, but “setting the maximum speed, such
`as ‘M2 MAX SPEED,’ to zero leaves the separate ‘REVERSE SPEED’
`configuration setting in the motor controller unchanged.” Id. at 22–23
`(quoting Ex. 1004, 16).
`According to Patent Owner, “restricting maximum forward speed
`while leaving ‘REVERSE SPEED’ enabled ensures that the golf cart safely
`returns to the course without entering the restricted access area.” Id. at 23
`(citing Ex. 2009 ¶¶ 58–59). Mr. Andrews testifies that “‘REVERSE
`SPEED’ is a separate configuration setting that the controller can configure
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`based on GPS location.” Ex. 2009 ¶ 58. Further, Mr. Andrews contends
`that a person of ordinary skill in the art “would understand that using the
`separate ‘REVERSE SPEED’ configuration setting ensures that the driver
`and golf cart safely ‘return to the course’ as instructed by the warning
`message.” Id. ¶ 59. Thus, Mr. Andrews opines that “the disclosures from
`the ’894 Provisional sufficiently describes ‘disabling golf cart movement
`except in a reverse direction.’” Id. ¶ 60.
`In its Sur-Reply, Patent Owner further argues that “a provisional
`application need not use the exact same terminology as is found in the
`challenged claims.” PO Sur-Reply 3. Patent Owner notes that, “Petitioner
`advances only attorney argument to support” its theories with no expert
`testimony addressing Patent Owner’s positions. Id. at 6. Patent Owner
`addresses one such attorney argument that other functions may be enabled
`when a golf cart is slowed. Patent Owner counters that ʼ894 Provisional
`never mentions slowing the golf cart to a speed only tolerable for a U-turn or
`locking both the forward and reverse functionality of the golf cart as argued
`by Petitioner. Id. Patent Owner maintains that the Curtis 1510 controller
`has “a configuration setting for ‘REVERSE SPEED,’ which is separate from
`the forward speed settings.” Id. (citing Ex. 2009 ¶ 58; Ex. 1004, 12). When
`a driver travels toward a restricted area, the control system will warn the
`driver and eventually the maximum speed may be set to zero to stop the
`vehicle. Id. According to Patent Owner, because the reverse speed setting is
`separate, a person of ordinary skill in the art “would understand that once
`this occurs, only the ‘REVERSE SPEED’ would remain functional.” Id.
`(citing Ex. 2009 ¶¶ 58–60).
`
`
`
`16
`
`
`
`IPR2017-02144
`Patent 7,480,569 B2
`
`
`Thus, Patent Owner concludes that the ’894 Provisional provides
`written description support for the reverse only functionality. Id. at 6–7. As
`Patent Owner further argues, “Claim 11 is entitled to claim priority to the
`ʼ894 Provisional,” thus, “the ʼ918 Publication is not prior art,” and
`“Petitioner cannot demonstrate that claim 11 is invalid in light of the ʼ918
`Publication.” Id. at 7.
`Having now considered the evidence in the complete record
`established during trial, we are persuaded that, based on this record, Patent
`Owner has demonstrated that the limitations of claim 11 are supported by
`the ’894 Provisional.
`3. Discussion
`The ’894 Provisional describes a control action that automatically
`slows the speed of the golf car until it returns to the course—“[Y]our cart
`has been slowed down because you are outside the boundaries of the course.
`Your car will continue to slow down until you return to the course.”
`Ex. 1004, 30 (emphases added) (also showing that “Reduce Maximum
`Speed” may be adjusted to a select speed as similarly set forth in Figure 3 of
`the ’569 patent). The ’894 Provisional specifies that the Curtis 1510
`controller includes a configuration setting for “REVERSE SPEED,” and we
`find persuasive Mr. Andrews’ testimony that this control setting is separate
`from the maximum forward speed settings, “M1 MAX SPEED,” “M2 MAX
`SPEED,” “M3 MAX SPEED,” and “M4 (HIGH) MAX SPEED.” Ex. 1004,
`12; Ex. 2009 ¶ 58 (“‘REVERSE SPEED’ is a separate configuration setting
`that the controller can configure based on GPS location.”). We find that
`these disclosures in the ’894 Provisional—slowing or stopping the car until
`it reverses course and separate configurable settings for reverse speed in the
`
`
`
`17
`
`
`
`IPR2017-02144
`Patent 7,480,569 B2
`
`motor controller—establish affirmative support for a configuration as
`claimed where the car’s forward movement is disabled, but the car may still
`move in a reverse direction, as required by claim 11. Because the maximum
`forward speed can be set to zero to stop the vehicle from further movement
`towards the restricted area, but setting the maximum speed to zero leaves the
`separate “REVERSE SPEED” configuration setting in the motor controller
`unchanged, Patent Owner has shown how the vehicle is capable of operation
`only in a reverse direction. See Ex. 1004, 10, 12, 16, 30.
`From a functional capability, there is simply no difference between
`the descriptions found in the ’894 Provisional and the claimed limitations.
`See Ex. 2009 ¶¶ 49–60. Thus, Patent Owner has met its burden of showing
`adequate written description support for claim 11 in the earlier ’894
`Provisional. Accordingly, the ’918 Publication does not qualify as prior art
`against claim 11. Based on the final trial record before us, Petitioner does
`not present sufficient arguments and credible evidence to support a finding
`that claim 11 is anticipated by the ’918 Publication.
`D. Obviousness of Claims 17–19 Over the ’918 Publication
`Petitioner challenges the patentability of claims 17–19 of the ’569
`patent under 35 U.S.C. § 103 as obvious based on the ’918 Publication.
`Pet. 22–27. Having now considered the evidence in the complete record
`established during trial, Petitioner has not demonstrated by a preponderance
`of the evidence that these claims would have been obvious over the
`’918 Publication. We begin our analysis with a brief overview of the
`’918 Publication and then discuss the parties’ contentions for claims 17–19.
`
`
`
`18
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`IPR2017-02144
`Patent 7,480,569 B2
`
`
`1. ’918 Publication (Ex. 1003)
`The ’918 Publication discloses a “control and diagnostics system and
`method for vehicles.” Ex. 1003, (54), (57). The “remote diagnostic system”
`disclosed in the ’918 Publication features a “base station,” which is
`associated “with a transceiver and a remote unit installed in a vehicle.” Id.
`at (57). The “remote unit” transmits “diagnostic data” about the vehicle to
`the “base station,” which may include the vehicle’s current location on a
`virtual map. Id. The concepts disclosed in the ’918 Publication may be
`applied to “a battery powered golf cart.” Id. ¶ 22. Diagnostic information
`gathered from the cart (and transmitted to a base station) may include
`information concerning “battery voltage” and “battery state of charge,” as
`well as the location of the cart on a virtual course map. Id. ¶¶ 29, 58, 59.
`The remote unit installed on the cart includes a wireless transceiver, a
`memory, a communications bus, and a controller. Id. ¶ 27; see also id. at
`Fig. 2. The remote unit controller is coupled to a GPS receiver and mapping
`processor. Id. ¶ 9. The memory stores a map of the course with areas that
`are allowable or restricted, and the processor correlates the GPS-determined
`cart location with the virtual map. Id. Different modes of vehicle operation
`are enabled depending on the vehicle’s position relative to the map. Id. ¶ 62.
`For example, forward or reverse operation may be disabled, speed may be
`reduced near hazards, and a deterrence mode may fully disable the vehicle.
`Id.
`
`2. Claims 17–19
`Petitioner challenges the patentability of claim 17 as rendered obvious
`by the ’918 Publication. Pet. 23–25. According to Petitioner, the
`’918 Publication discloses each of the limitations of claim 17, including
`
`
`
`19
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`IPR2017-02144
`Patent 7,480,569 B2
`
`those of base claim 13. Id. Claim 17 requires “the driver interface unit
`associated with each golf cart and operable to communicate an alarm to a
`base station of a controller limiting the performance of a driver command.”
`Ex. 1002, 9:10–13.
`Petitioner contends that “[t]he ‘918 Publication discloses a driver
`interface unit [that] is operable to communicate to the base station an alarm
`of a driver command to move a golf cart in a restricted access area.” Pet. 25
`(citing Ex. 1003 ¶ 68 (“An optional signal can be transmi
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