throbber
Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 13
`Entered: April 11, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________
`
`STIHL INCORPORATED and ANDREAS STIHL AG & CO. KG,
`Petitioner,
`
`v.
`
`ELECTROJECT TECHNOLOGIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00018
`Patent 6,955,081 B2
`____________
`
`
`
`Before JOSEPH A. FISCHETTI, MEREDITH C. PETRAVICK, and
`WILLIAM V. SAINDON, Administrative Patent Judges.
`
`SAINDON, Administrative Patent Judge.
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`I.
`
`INTRODUCTION
`
`Stihl Incorporated and Andreas Stihl AG & Co. KG, (“Petitioner”)
`
`filed a Petition requesting an inter partes review of claims 1–18 of U.S.
`
`Patent No. 6,955,081 B2 (Ex. 1001, “the ’081 patent”). Paper 1 (“Pet.”).
`
`Electrojet Technologies, Inc., (“Patent Owner”) filed a Preliminary
`
`Response. Paper 21 (“Prelim. Resp.”).
`
`We have authority under 35 U.S.C. § 314, which provides that an
`
`inter partes review may not be instituted unless the information presented in
`
`the Petition and the Preliminary Response shows that “there is a reasonable
`
`likelihood that the petitioner would prevail with respect to at least 1 of the
`
`claims challenged in the petition.” 35 U.S.C. § 314; see also 37 C.F.R
`
`§ 42.4(a) (“The Board institutes the trial on behalf of the Director.”). Taking
`
`into account the arguments presented in the Preliminary Response, we
`
`conclude that the information presented in the Petition establishes a
`
`reasonable likelihood that Petitioner would prevail with respect to all
`
`challenged claims. Accordingly, we institute an inter partes review for
`
`claims 1–18 of the ’081 patent.
`
`A. Related Matters
`
`The parties identify the following matters related to the ’081 patent
`
`(Pet. 1; Paper 5, 1):
`
`Electrojet Technologies, Inc. v. Stihl Incorporated and Andreas Stihl
`
`AG & CO. KG, Case No. 2:17-cv-00224-RAJ-DEM (E.D.Va.).
`
`In addition, Petitioner has filed a petition challenging Patent Owner’s
`
`U.S. Patent No. 7,225,793 patent in IPR2018-00022, which Patent Owner
`
`characterizes as “related to” the ’081 patent and Petitioner characterizes as
`
` 2
`
`
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`“claim[ing] priority to the same original parent application . . . and shares
`
`much of the same disclosure.” Paper 5, 1; Pet. 1–2.
`
`B. The ’081 Patent
`
`The ’081 patent describes the invention as “an intake air pressure
`
`sensor assembly for an internal combustion engine . . . for determining
`
`intake air mass and controlling the fuel injectors and ignition timing of said
`
`engine.” Ex. 1001 1:21–25. It is known “that air intake pressures fluctuate
`
`with the opening and closing of the intake valves [of the cylinder] during the
`
`intake stroke [of the piston].” Id. at 2:18–20. The air intake pressures are
`
`“understood in the art . . . [to] be used for intake air mass calculations in fuel
`
`injection control.” Id. at 2:33–35. As to ignition timing, the ’081 patent
`
`states that crankshaft and camshaft position measurements were typically
`
`used to determine the angular position of the engine. Id. at 2:55–3:37. The
`
`aim of the ’081 patent is to utilize the intake air pressure sensor to perform
`
`the functions of these other sensors, to measure engine timing and intake air
`
`mass, which represents a reduction in the total number of sensors required to
`
`run a fuel-injected engine. Id. at 3:65–4:19.
`
`C. Challenged Claims
`
`Petitioner challenges claims 1–18 of the ’081 patent. Independent
`
`claim 1 is reproduced below.
`
`1. An engine control apparatus for determining engine position
`and intake air mass from a single sensory means, comprising:
`(a) an engine having at least one cylinder, a piston in said
`cylinder, a crankshaft connected to said piston, said piston
`being adapted to reciprocate between top dead center position
`and bottom dead center position defining a combustion
`chamber, an intake valve controlling the induction of an air
`mass into said combustion chamber with predetermined
`
` 3
`
`
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`timing related to said crankshaft's angular position, said
`engine air induction system having its chamber contiguous
`with said valve and said engine combustion chamber, a
`pressure sensing element in communication with said air
`induction chamber;
`(b) a pressure sensor means for developing periodic sensor
`voltage timing pulses, the cycle time between timing pulses
`being an indication of engine crankshaft speed, and the pulse
`timing being an indication of a particular crankshaft degree of
`angular position;
`(c) a pressure sensor means for measuring intake air mass for the
`determination intake air mass;
`([d])1 a means for measuring in real-time, intake air pressure,
`cycle time, and crankshaft position.
`
`
`
`D. Prior Art and Asserted Grounds
`
`Petitioner asserts the following obviousness grounds:
`
`References
`
`Abe2 and Kupske3
`
`Claims Challenged
`
`1–12, 14–16, and 18
`
`Abe, Kupske, and knowledge of POSA4
`
`13 and 17
`
`
`1 This limitation appears as “(c)” in the original claim. We have modified it
`for clarity to “(d)” to avoid duplicative lettering of claim elements.
`
`2 U.S Patent No. 4,866,620, iss. Sept. 12, 1989 (Ex. 1004).
`
`3 DE 101 16 485 A1, published Oct. 10, 2002 (Ex. 1006) (certified
`translation).
`
`4 “Person of Ordinary Skill in the Art.” Petitioner states that the ’081 patent
`“expressly admits that [a crank trigger] was well known [to a POSA].” Pet.
`42 (citing Ex. 1001, 3:13–15; Ex. 1010, 103–105) (Ex. 1001, 3:13–15
`(“[m]any small engines utilize a crankshaft trigger mechanism for indicating
`a predetermined crankshaft position for ignition purposes.”)).
`
` 4
`
`
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`References
`
`Claims Challenged
`
`Ostdiek5 and Vernier6
`
`1, 3, 5, 6, 8, 10–12, and 14
`
`Ostdiek, Vernier, and knowledge of POSA7 2, 4, 7, 9, 13, and 15–18
`
`Pet. 4.
`
`II. PATENTABILITY ANALYSIS
`
`A. Claim Construction
`
`Petitioner sets forth its proposed claim constructions for several
`
`means-plus-function terms. Pet. 9–16. Patent Owner does not dispute at this
`
`time Petitioner’s proposed constructions. We have reviewed Petitioner’s
`
`proposed constructions and consider them reasonable, on this record, for the
`
`reasons set forth in the Petition. We adopt Petitioner’s proposed
`
`constructions, set forth below:
`
`Claim(s)
`or
`Claim
`Element
`1(b)
`
`Term
`
`Construction
`
`“pressure sensor means
`for developing periodic
`sensor voltage timing
`pulses”
`
`“an intake pressure sensor in
`combination with an
`ECU for performing the function of
`developing periodic sensor voltage
`timing
`pulses”
`
`
`5 U.S Patent No. 45,092,301, iss. Mar. 3, 1992 (Ex. 1007).
`
`6 U.S Patent No. 5,261,369, iss. Nov. 16, 1993(Ex. 1008).
`
`7 As explained in our discussion below, we need not reach the merits of
`Petitioner’s assertions regarding the scope of the knowledge of a person of
`ordinary skill in the art. Thus, we do not list here the specific knowledge
`relied upon by Petitioner.
`
` 5
`
`
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`Claim(s)
`or
`Claim
`Element
`1(c)
`
`Term
`
`Construction
`
`“an intake pressure sensor in
`combination with an ECU for
`performing the function of
`measuring intake air mass for the
`determination intake air mass”
`“an ECU in combination with an
`intake pressure sensor for
`performing the function of
`measuring in real-time, intake air
`pressure, cycle time, and crankshaft
`position”
`“an intake pressure sensor in
`combination with an ECU for
`performing the function of detecting
`engine load”
`“crankshaft position sensor in
`combination with an ECU for
`performing the function of detecting
`crankshaft position”
`“an intake pressure sensor in
`combination with an ECU to
`perform the function of determining
`crankshaft position, where in the
`event of singular sensory component
`failure, the engine control apparatus
`is capable of determining crankshaft
`position to maintain engine run
`capability”
`
` 6
`
`
`
`“pressure sensor means
`for measuring intake air
`mass”
`
`1([d])
`
`“means for measuring in
`real-time, intake air
`pressure, cycle time, and
`crankshaft position”
`
`2, 4, 7, 9 “a pressure sensor means
`to detect engine load”
`
`“additional sensory
`means to detect
`crankshaft position”
`
`“redundant means to
`determine crankshaft
`position, where in the
`event of singular sensory
`component failure, the
`engine control apparatus
`is capable of determining
`crankshaft position to
`maintain engine run
`capability”
`
`3, 8
`
`5
`
`
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`B. Obviousness Over Abe (Ex. 1004) and Kupske (Ex. 1006)
`(Claims 1–12, 14–16, and 18)
`
`We begin our analysis with claim 1. In general, claim 1 is directed to
`
`an engine control for determining engine position and intake air mass from a
`
`single sensory means, specifically a pressure sensor means. Petitioner’s
`
`ground begins with assertions that Abe describes the limitations directed to
`
`an engine (Pet. 27–29), the pressure sensor means with respect to measuring
`
`intake air mass (id. at 32), and a means for measuring that intake air mass
`
`(id. at 32–33). Petitioner then asserts that Kupske discloses the limitation
`
`directed to a pressure sensor developing timing pulses indicating engine
`
`crankshaft speed (cycle time) and position. Id. at 29–32. Petitioner asserts
`
`that it would have been obvious to “incorporate Kupske’s engine controller
`
`(which uses the signals from an intake pressure sensor to determine engine
`
`position and engine cycle time) into the ECU disclosed in Abe.” Id. at 25.
`
`Specifically, Petitioner states that a person of ordinary skill in the art would
`
`have been motivated to use Kupske’s teachings “to calculate engine position
`
`as an emergency backup when the crankshaft sensor (12) fails.” Id. at 25–
`
`26. Petitioner concludes that such a combination would have been “nothing
`
`more than the use of known techniques to improve similar methods in the
`
`same way[,] or the combination of prior art elements according to known
`
`methods to yield predictable results.” Id. at 26.
`
`Patent Owner argues that Petitioner’s reasons to combine are
`
`insufficient. Prelim. Resp. 14–30. We have reviewed these arguments and
`
`find them uncompelling on this record at this stage of the proceeding. In
`
`particular, Petitioner’s rationale is not insufficient for purposes of institution
`
`at least because Petitioner has identified a specific motivation to combine:
`
` 7
`
`
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`Kupske teaches using intake pressure sensor signals to determine engine
`
`timing as a backup to more traditional crankshaft/camshaft sensors, in the
`
`event those crankshaft or camshaft sensors stop working. See Ex. 1006 ¶ 17
`
`(“the invention [is] specifically designed to continue to allow for emergency
`
`operation of the engine in the event of a failure of the usual speed sensors”),
`
`¶ 19 (“[i]n the event of a failure of both speed sensors . . ., the pressure
`
`sensor 4 can be used to determine the cycle time tz for an engine cycle”).
`
`Thus, Petitioner’s reasoning that a person of ordinary skill in the art had
`
`reason to look to Kupske’s method of deriving cycle time, to help in
`
`emergencies, has a factual underpinning.
`
`Patent Owner further argues that Petitioner specifically states to
`
`incorporate Kupske’s engine controller rather than the analyzer and engine
`
`controller. Prelim. Resp. 18. To illustrate Patent Owner’s argument, Figure
`
`1 of Kupske is reproduced below:
`
`
`
` 8
`
`
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`Figure 1 of Kupske depicts analyzer 8 and engine controller 2 as part
`
`of control unit 10. Ex. 1006 ¶ 15. Analyzer 8 receives signals from pressure
`
`sensor 4 and uses that information to emulate arithmetically the signals
`
`otherwise provided by speed sensor 12 reading the position of camshaft 14.
`
`Id. ¶ 19.
`
`Patent Owner is correct that Petitioner states that it would have been
`
`obvious “to incorporate Kupske’s engine controller” in the Petition. Pet. 25.
`
`Patent Owner is also correct that Kupske describes analyzer 8 as generating
`
`the appropriate signals, not the engine controller by itself. See Ex. 1006
`
`¶ 19. However, reviewing Petitioner’s ground, Petitioner’s use of the phrase
`
`“engine controller” is understood as a reference to “engine control unit” (i.e.,
`
`id., Fig. 1, item 10). Petitioner incorporates those features of Kupske that
`
`provide for backup sensing using the pressure sensor, and not some bodily
`
`incorporation of Kupske’s control unit, which cannot provide that feature
`
`alone. For example, Petitioner explains that the pressure sensor element of
`
`claim 1(b) reads on the features of Kupske that provide cycle timing pulses
`
`as an indication of engine crankshaft speed and angular position. Pet. 29.
`
`Analyzer 8 is a necessary component of that, as Petitioner further explains in
`
`the Petition. See id. at 29–31. Accordingly, Petitioner has set forth
`
`sufficiently its alleged ground of unpatentability, to make clear it is
`
`proposing to incorporate those features of Kupske to provide Abe’s
`
`controller with the same backup capability taught in Kupske. Reviewing the
`
`Petition and Patent Owner’s Preliminary Response, we determine that
`
`Petitions has demonstrated a reasonable likelihood of showing claim 1 to
`
`have been unpatentable over Abe and Kupske.
`
` 9
`
`
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`Petitioner similarly has shown a reasonable likelihood of success as to
`
`independent claims 6, 11, and 15, which have scope similar to that of claim
`
`1. Patent Owner does not offer additional arguments as to claims 11 and 15
`
`at this time. As to claim 6, Patent Owner argues that Petitioner does not
`
`address “determining . . . intake air mass” as required by claim 6, step (g).
`
`Prelim. Resp. 31. However, Petitioner points out how Abe discloses a
`
`“pressure sensor [that] . . . transmits intake manifold pressure signals to the
`
`ECU,” which, in turn “computes the amount of intake air Q (e.g., the intake
`
`air mass).” Pet. 32. Accordingly, Patent Owner is incorrect that there are
`
`gaps to fill because this element is directly and explicitly addressed in the
`
`Petition.
`
`Petitioner likewise has made sufficient showings for dependent claims
`
`2–5, 7–10, 12, 14, 16, and 18, none of which Patent Owner argues at this
`
`time. Pet. 33–35, 37–38, 40, 41–42. Dependent claims 2, 4, 7, and 9 require
`
`a pressure sensor means to detect engine load, which Petitioner asserts is the
`
`intake air quantity Q divided by engine speed N, and which is described in
`
`Abe. See, e.g., Pet. 33 (citing Ex. 1004, 2:54–64, 7:39–50). Dependent
`
`claims 3, and 8 require an additional sensory means to detect crankshaft
`
`position, and dependent claims 12, 14, and 16 requires a crankshaft position
`
`sensor, which Petitioner asserts is the ring gear and sensor arrangement in
`
`Abe, and which “produces a pulse signal at predetermined intervals of crank
`
`angle.” See, e.g., id. at 34 (citing Ex. 1004, 4:23–27; Ex. 1006 ¶ 17).
`
`Dependent claims 5, 10, and 18 require an additional or redundant sensor,
`
`which the combination affords because Kupske provides a backup for the
`
`crankshaft sensor. See, e.g., id. at 35 (citing Ex. 1006 ¶¶ 17–21).
`
`
`
`10
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`C. Obviousness Over Abe, Kupske, and Knowledge of a Person of
`Ordinary Skill in the Art
`(Claims 13 and 17)
`
`Dependent claims 13 and 17 require that the crankshaft position
`
`sensor comprises a crank trigger. Petitioner asserts that the ’081 patent
`
`admits that this is well known at the time of the invention, and that it would
`
`accordingly have been obvious to include this known feature. Pet. 42–43
`
`(citing Ex. 1001, 3:13–25; Ex. 1003 ¶¶ 154–155; Ex. 1010, 103–105).
`
`Petitioner’s showing is sufficient to establish a reasonable likelihood of
`
`success on this ground, and Patent Owner does not offer any rebuttal at this
`
`time.
`
`D. Obviousness Over Ostdiek and Vernier
`(Claims 1, 3, 5, 6, 8, 10–12, and 14)
`
`Ostdiek, Vernier, and Knowledge of a Person of Ordinary Skill in the
`Art
`(Claims 2, 4, 7, 9, 13, and 15–18)
`
`Petitioner’s proposed combination involves taking the engine control
`
`apparatus of Ostdiek and modifying it to determine “engine position based
`
`on signals from a single sensory means.” Pet. 45. Petitioner asserts that:
`
`It would have been obvious to a POSITA to incorporate
`Vernier’s description of the use of signals from an intake
`pressure sensor to determine the engine’s position into the
`system disclosed in Ostdiek, as this would have amounted to
`nothing more than the use of known techniques to improve
`similar methods in the same way or the combination of prior art
`elements according to known methods to yield predictable
`results.
`
`. . .
`
`A POSITA would have been motivated to incorporate the
`continuous pressure monitoring capabilities of Vernier in order
`
`
`
`
`11
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`to detect pressure inflection points, and use this to determine
`engine position to enhance the operation of the fuel injection
`system in Ostdiek.
`
`Second, the combination of Ostdiek and Vernier was
`
`obvious to try. . . . A POSITA would have recognized that
`Ostdiek’s teachings were consistent with Vernier’s and would
`have pursued the combination of these known solutions with a
`reasonable expectation of success.
`
`Pet. 48–49.
`
`Reviewing Petitioner’s ground, we determine that Petitioner has not
`
`articulated sufficiently a reason explaining why the claimed subject matter
`
`would have been obvious over these references. In the Abe-Kupske ground,
`
`Petitioner gave a specific reason for the combination: Kupske teaches using
`
`pressure sensors as a backup in case the cranskshaft sensor failed. In
`
`contrast here, Petitioner merely states that the reason to combine is to obtain
`
`the result of the combination, but fails to give a reason why a person of
`
`ordinary skill in the art would seek out such result in the first place. Pet. 48
`
`(“obvious . . . to incorporate . . . to determine the engine’s position”). A
`
`reason for combination explains not the result of the combination, but why
`
`such a combination would have been obvious. Unlike Kupske, which gives
`
`a reason to measure the time between pressure peaks (as a backup), Vernier
`
`merely states that such a calculation is possible. Ex. 1008, 3:1:5. Prior art
`
`references are not combinable merely because it is possible to perform the
`
`combination; a rationale must be provided. See Belden Inc. v. Berk-Tek
`
`LLC, 805, F.3d 1064, 1073 (Fed. Cir. 2015). Petitioner provides no
`
`sufficient reason to modify Ostdiek’s system in some manner with the
`
`teachings of Vernier. Accordingly, we determine that Petitioner has not
`
`established a reasonable likelihood of success with the Ostdiek-Vernier
`
`
`
`12
`
`
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`grounds.
`
`III. ORDER
`
`In view of the foregoing, it is hereby:
`
`ORDERED that an inter partes review of the ’081 patent is instituted,
`
`commencing on the entry date of this Order, and pursuant to 35 U.S.C.
`
`§ 314(c) and 37 C.F.R. § 42.4, notice is hereby given of the institution of a
`
`trial; and
`
`FURTHER ORDERD that the inter partes review is limited to
`
`determining:
`
`Whether claims 1–12, 14–16, and 18 would have been obvious
`
`over Abe and Kupske; and
`
`Whether claims 13 and 17 would have been obvious over Abe,
`
`Kupske, and the knowledge of a person of ordinary skill in the art.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`13
`
`

`

`IPR2018-00018
`Patent 6,955,081 B2
`
`For PETITIONER:
`
`Robert Hilton
`rhilton@mcguirewoods.com
`
`George Davis
`gdavis@mcguirewoods.com
`
`For PATENT OWNER:
`
`Thomas Lewry
`tlewry@brookskushman.com
`
`Michael MacCallum
`mmaccallum@brookskushman.com
`
`John Nemazi
`jnemazi@brookskushman.com
`
`John Rondini
`jrondini@brookskushman.com
`
`Mark Jotanovic
`mjotanovic@brookskushman.com
`
`
`
`
`14
`
`
`
`

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