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` Paper 8
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` Entered: November 26, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BMW OF NORTH AMERICA, LLC,
`Petitioner,
`v.
`BLITZSAFE TEXAS, LLC,
`Patent Owner.
`____________
`
`Case IPR2018-01204
`Patent 7,489,786 B2
`____________
`
`
`
`Before JAMESON LEE, THOMAS L. GIANNETTI, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a)
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`IPR2018-01204
`Patent 7,489,786 B2
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`I.
`INTRODUCTION
`BMW of North America, LLC (“Petitioner”) filed a Petition requesting
`inter partes review of claims 92–94, 97, and 98 (“the challenged claims”) of
`U.S. Patent No. 7,489,786 B2 (Ex. 1001, “the ’786 patent”). Paper 2
`(“Pet.”). Blitzsafe Texas, LLC (“Patent Owner”) filed a Preliminary
`Response. Paper 7 (“Prelim. Resp.”).
`We have jurisdiction under 35 U.S.C. § 314, which states that inter
`partes review may not be instituted unless “the information presented in the
`petition . . . and any 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.” Having considered the Petition and the
`Preliminary Response, and for the reasons stated below, we do not institute
`inter partes review of the ’786 patent.
`
`A. Related Matters
`The parties indicate that the ’786 patent is the subject matter of district
`court litigation pending in the Eastern District of Texas. Pet. 48–49; Paper
`6, 1–2.
`The ’786 patent has been challenged in many AIA proceedings:
`IPR2016-00421, IPR2016-00422, IPR2016-01448, IPR2016-01472,
`IPR2016-01477, IPR2018-01142, IPR2018-01203, IPR2018-01211, and
`IPR2018-01214. Pet. 49–50; Paper 6, 2.
`
`B. The ’786 Patent (Ex. 1001)
`The ’786 patent is entitled “Audio Device Integration System.” Ex.
`1001, [54] (emphasis omitted). According to the ’786 patent, a “particular
`problem with integrating after-market audio systems with existing car
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`stereos is that signals generated by the car stereo is in a proprietary format,
`and is not capable of being processed by the after-market system.” Id. at
`1:36–39. “Thus, in order to integrate after-market systems with car stereos,
`it is necessary to convert signals between such systems.” Id. at 1:4244.
`The ’786 patent is directed to an audio device integration system that
`allows after-market audio devices to be integrated for use with an existing
`car stereo system, such that control commands can be issued at the car stereo
`for execution by the audio device and data from the audio device can be
`displayed on the car stereo. Id. at [57], 2:12–42. More specifically, control
`commands generated at the car stereo are received, converted into a format
`recognizable by the after-market audio device, and dispatched to the device
`for execution. Id. at [57], 2:35–40. In addition, information from the audio
`device, such as track, channel, song, and artist information, is received,
`processed, converted into a format recognizable by the car stereo, and
`dispatched to the stereo for display. Id. at [57], 2:40–47. The audio device
`could, for example, comprise a “CD player, CD changer, MP3 player,
`satellite receiver, [or] digital audio broadcast (DAB) receiver.” Id. at 4:28–
`30; see id. at [57], 2:23–26. Figures 2A–2C are reproduced below:
`
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`
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`Figures 2A–C illustrate embodiments in which a car stereo is integrated with
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`a CD player (Figure 2A), an MP3 player (Figure 2B), and a satellite radio or
`DAB receiver (Figure 2C). Id. at 3:14–23.
`In addition, an external audio device as well as auxiliary input sources
`may be integrated with a car stereo. Id. at [57], 2:53–56. A user then “can
`select between the external audio device and the auxiliary input using the
`controls of the car stereo.” Id. at 2:56–57. Figure 1 is reproduced below:
`
`
`Figure 1 illustrates an embodiment integrating a car stereo with a CD player,
`an MP3 player, and a satellite radio or DAB receiver, as well as a number of
`auxiliary input sources. Id. at 3:12–13, 5:14–27.
`As shown in the above figures, central to the ’786 patent is an
`“interface” positioned between the car stereo and the audio device(s) and
`auxiliary input(s). See, e.g., id. at Fig. 1, 2A–C, 5:33–36. The interface
`allows for the integration of the audio devices and auxiliary inputs with the
`OEM or after-market car stereo. Id. at 5:33–36.
`
`C. Illustrative Claim
`Of the challenged claims, claim 92 is independent. Claims 93, 94, 97,
`and 98 depend directly or indirectly from claim 92.
`Claim 92, reproduced below, is illustrative:
`92. An audio device integration system comprising:
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`a car stereo;
`a portable audio device external to the car stereo;
`an interface connected between the car stereo and the
`portable audio device, the interface including a microcontroller
`pre-programmed to execute:
`first pre-programmed means for generating a device
`presence signal and transmitting the signal to the car stereo
`to maintain the car stereo in an operational state;
`second pre-programmed means
`for
`remotely
`controlling the portable audio device using the car stereo
`by receiving a control command from the car stereo in a
`format incompatible with the portable audio device,
`processing the control command into a formatted control
`command compatible with the portable audio device, and
`transmitting the formatted control command to the
`portable audio device for execution thereby; and
`means for transmitting audio from the portable
`audio device to the car stereo.
`Ex. 1001, 29:11–31.
`
`D. Asserted Prior Art and Grounds of Unpatentability
`The Petition identifies the following references in connection with
`Petitioner’s challenge of unpatentability (Pet. 13–17):
`a) Herley: U.S. Patent Application Pub. No. 2005/0262528 A1, filed
`in the record as Exhibit 1003;
`
`b) Ido: European Patent Application Pub. No. EP 0950570 A2, filed
`in the record as Exhibit 1005; and
`
`c) Lutter: U.S. Patent Application Pub. No. 2002/0196134 A1, filed
`in the record as Exhibit 1008.
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`Petitioner asserts the following grounds of unpatentability based on
`the afore-mentioned references (Pet. 13):
`
`Challenged Claims
`92–94, 97, and 98
`
`Basis
`§ 103(a)
`
`References
`Herley, Ido, and Lutter
`
`Petitioner also relies on a Declaration of Mr. James T. Geier, filed as
`Exhibit 1002 (“Geier Declaration”).
`
`II. DISCUSSION
`
`Claim Construction
`A.
`In an inter partes review, the Board interprets claims terms of an
`unexpired patent using the “broadest reasonable construction in light of the
`specification of the patent.” 37 C.F.R. § 42.100(b); Cuozzo Speed Techs.,
`LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Under the broadest
`reasonable interpretation standard, claim terms generally are given their
`ordinary and customary meaning, as would be understood by one of ordinary
`skill in the art in the context of the entire disclosure. See In re Translogic
`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). We note that only those
`claim terms that are in controversy need to be construed, and only to the
`extent necessary to resolve the controversy. See Nidec Motor Corp. v.
`Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017);
`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
`1999).
`
` “interface”
`1.
`Petitioner asserts correctly that the Board has interpreted the term
`“interface” to mean “a physical unit that connects one device to another and
`that has a functional and structural identity separate from that of both
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`connected devices.” Pet. 8 (citing Decision in IPR2016-00421; Ex. 1007,
`15). Patent Owner assumes that we will apply the Board’s prior construction
`when determining whether to institute. Prelim. Resp. 4. Therefore, there is
`no dispute as to the construction to be applied for purposes of institution,
`and, accordingly we adopt the Board’s prior construction of “interface” as
`stated above.
`
`2. Means-plus-function Terms
`Claim 92 recites multiple means-plus-function terms, for which
`Petitioner offers claim construction positions. Pet. 912. These positions
`apparently are taken from Patent Owner’s claim construction positions in the
`parallel district court litigation. Id. (citing Ex. 1009). Because it is
`dispositive, we discuss in detail the construction for the term “second pre-
`programmed means for remotely controlling the portable audio device using
`the car stereo by . . . processing the control command into a formatted
`control command compatible with the portable audio device.” Ex. 1001,
`29:21–27. Petitioner proposes that the structure corresponding to the recited
`function are “the code or algorithms illustrated in Tables 1 and 2 of the
`’786 patent.” (citing Ex. 1001, 17:3118:50).1 We agree that the code or
`algorithms illustrated in Tables 1 and 2 disclosed in the specification of the
`’786 patent are algorithms that correspond to the function of “processing the
`control command into a formatted control command compatible with the
`portable audio device.” In particular, we note that the specification
`
`
`1 Patent Owner does not dispute this. Prelim. Resp. 67 (stating that “[f]or
`the purposes of this preliminary response, Patent Owner assumes that the
`Board will apply these constructions.”).
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`describes Table 1 as “a sample code portion . . . for converting control
`signals from a BMW car stereo into a format understandable by a CD
`changer.” Ex. 1001, 17:2831. The disclosed code shows that a STOP
`command received from a BMW stereo is in a format proprietary to BMW
`stereos, and that a new command results when the procedure
`“Encode_RD_stop_msg” repetitively applies an XOR function to the STOP
`command. Id. at 17:6218:2. This new command is then stored in an output
`buffer for dispatching to the CD player. Id. at 18:12.
`But the corresponding structure is not the algorithm alone; it includes
`the microcontroller that is programmed to execute the algorithm. The
`’786 patent explains that microcontroller U1 provides the functionality of
`integrating the CD player or auxiliary input sources connected to the ports.
`Ex. 1001, 8:4649. That microcontroller, the ’786 patent states, “receives
`control commands, such as button or key sequences, initiated by a user at
`control panel of the car radio . . . processes and formats same, and
`dispatches the formatted commands to the CD player or auxiliary input
`source via connector J2A1.” Id. at 8:5055 (emphasis added). Accordingly,
`the corresponding structure is a microcontroller that executes, at a minimum,
`the algorithm disclosed in Table 1, as explained above. We apply this
`construction in the course of our determination whether to institute trial:
`Function: processing the control command into a formatted control
`command compatible with the portable audio device.
`Structure: a microcontroller programmed to execute, at a minimum,
`the algorithm disclosed in Table 1.
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`B.
`
`Principles of Law
`
`Obviousness
`1.
`A patent claim is unpatentable under 35 U.S.C. § 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) objective evidence of nonobviousness,
`i.e., secondary considerations.2 Graham v. John Deere Co., 383 U.S. 1, 17–
`18 (1966).
`Petitioner asserts a “person of ordinary skill in the art relevant to the
`’786 patent would have had: at least a Bachelor’s degree in electrical
`engineering or equivalent science/engineering degree and at least two years
`of experience in signal processing and/or electronic system design, or would
`have at least four years of experience in signal processing and/or electronic
`system design.” Pet. 6 (citing Ex. 1002 ¶¶ 19–22). Patent Owner agrees that
`this level of ordinary skill in the art is appropriate. Prelim. Resp. 3. We
`adopt the level of ordinary skill as articulated by Petitioner, except that we
`delete the qualifier “at least” to eliminate vagueness. The qualifier expands
`the range indefinitely without an upper bound and thus preclude a
`
`
`2 Patent Owner does not contend in its Preliminary Response that any such
`secondary considerations are present.
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`meaningful indication of the level of ordinary skill in the art.
`
`Petitioner’s Burden
`2.
`“In an [inter partes review], the petitioner has the burden from the
`onset to show with particularity why the patent it challenges is
`unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed.
`Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (requiring inter partes review
`petitions to identify “with particularity . . . the evidence that supports the
`grounds for the challenge to each claim”)). This burden of persuasion never
`shifts to Patent Owner. See Dynamic Drinkware, LLC v. Nat’l Graphics,
`Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015) (discussing the burden of proof in
`inter partes review). Furthermore, Petitioner cannot satisfy its burden of
`proving obviousness by employing “mere conclusory statements.” In re
`Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016).
`
`Summary of Asserted Prior Art
`C.
`The obviousness grounds rely on Herley, Ido, and Lutter. Therefore,
`we summarize these references below.
`
`Overview Herley (Ex. 1003)
`1.
`Herley is entitled “Smart Car Radio.” Ex. 1003, [54] (emphasis
`omitted). Herley relates to an audio content delivery system that can be
`portable and can include an interface that facilitates utilization in an
`automobile. Ex. 1003 ¶ 10. Figure 1 of Herley is reproduced below:
`
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`Figure 1 is a block diagram of mobile audio system 100. Id. ¶ 14. System
`100 includes user interface 102, controller 104, tuner 106, storage
`component 108, high speed interface 110, media database 112, sound system
`114, and external media source 116. Id. ¶¶ 40, 42. User interface 102
`enables a user to select, control, and obtain content to be received and
`played, and can include a touch screen or physical push buttons. Id. ¶¶ 41,
`58. Controller 104 interfaces and/or controls other components of system
`100. Id. Media from external media source 116 can be copied to media
`database 112 via high speed interface 110, which can be a universal serial
`bus (USB), firewire, or infrared connection. Id. ¶ 42. Sound system 114,
`which can be a car radio or speaker system, receives and plays the media
`audio stream. Id. ¶ 48. External media source 116 can be a portable
`compact disc (CD) player, portable digital video disc (DVD) player, portable
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`hard drive, flash memory, personal digital assistant, or MP3 player. Id.
`¶¶ 44, 137.
`
`Overview of Ido (Ex. 1005)
`2.
`Ido is entitled “Automotive Information System, Automotive
`Computer System, and Method of Controlling the Automotive Information
`System.” Ex. 1005, [54] (emphasis omitted). Ido relates to an automobile
`information system that consolidates a plurality of information apparatuses,
`such as a car audio system, car navigation system, voice recognition system,
`hands-free mobile telephone, and security system, by providing a means to
`convert data between different types of data buses. Id. ¶ 1. Figure 2 of Ido
`is reproduced below:
`
`
`Figure 2 is a block diagram of the automotive information system,
`illustrating CPU module 11, support module 12, external unit 30, and option
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`unit 40. Id. ¶ 80. A user can operate the system via external unit faceplate
`15, for example, by pressing a key to select the CD player source. Id. ¶¶ 72,
`118. Option unit 40 devices, such as CD-ROM auto-changer unit 7, are
`connected to the system via USB serial bus B3. Id. ¶ 77. Each of the
`devices connected to the USB, such as CD-ROM auto-changer unit 7, “is
`adapted to transmit and receive [data] to and from other [devices] in a form
`that conforms with the USB” protocol. Id. ¶ 78. Data read from the CD-
`ROM device is converted from ATAPI parallel form to a serial form that
`conforms with USB. Id. Ido discloses that “all kinds of data are exchanged
`[and] processed in the form of digital data through, for example, the USB,
`regardless of whether the data is audio data or character or other data.” Id.
`¶ 160.
`
`Overview of Lutter (Ex. 1008)
`3.
`Lutter is entitled “Method and Apparatus for Managing Audio
`Devices.” Ex. 1008, [54] (emphasis omitted). Lutter is directed to a vehicle
`audio manager system, which detects different portable audio sources that
`brought into the vehicle and connects the sources to output devices such as
`speakers or headsets. Id. ¶¶ 14–15. Figure 2 of Lutter is reproduced below:
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`Figure 2 depicts an example of a graphical user interface (GUI) 30
`that is coupled to the audio manager system. Id. ¶ 16. The GUI 30 displays
`audio sources, such as cellular phone 38 (shown as icon 32 on the GUI), CD
`player 24 (icon 34), and radio 37 (icon 36), that are connected wirelessly or
`hardwired to the audio manager of vehicle 12. Id. The audio manager
`allows a user to selectively connect the different audio sources to the
`different output devices by dragging and dropping source icons over the
`output icons. Id. ¶ 20. For example, “to output a cellular telephone
`conversation over the car Speakers 20A–20D and the headset 29, an operator
`simply drags icon 32 over the speaker icons 20A–20D and the headset icon
`29. Id.
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`Alleged Obviousness of Independent Claim 92
`D.
`After considering Petitioner’s contentions and Patent Owner’s
`arguments in opposition, we are persuaded that Petitioner has not
`demonstrated a reasonable likelihood of prevailing in showing that claims
`92–94, 97, and 98 would have been obvious over Herley, Ido, and Lutter.
`Because it is dispositive, we focus on Petitioner’s contentions
`regarding the second pre-programmed means for remotely controlling the
`portable audio device using the car stereo by. . . processing the control
`command into a formatted control command compatible with the portable
`audio device,” as recited in claim 92. As discussed above, the structure
`corresponding to this means-plus-function term is a microcontroller
`programmed to execute the algorithms disclosed in, at a minimum, Table 1
`of the ’786 patent. The algorithm of Table 1 includes a procedure that
`applies a function to convert the received command (from the car stereo)
`into another command that is compatible with the portable audio device.
`Petitioner advances two arguments. The first argument is that Herley,
`in view of Ido and Lutter, discloses “an equivalent structure that performs
`the same function.” Pet. 32. In particular, Petitioner points to Herley’s
`controller 104 (id. at 3233) in combination with Ido’s “form conversion.”
`Pet. 34 (citing Ex. 1005, ¶¶ 60, 61). Ido, according to Petitioner, teaches
`transmitting data through the USB and subjecting that data “to a form
`conversion so as to be changed into data of a form that is suitable for
`transmission and processing th[r]ough the PCI Bus.” Id. (emphasis added).
`Petitioner’s second argument relies on Ido’s faceplate commands. Id.
`at 3536. For instance, Petitioner argues that Ido discloses commands input
`through faceplate 15 and received by support module 12 (alleged interface),
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`which provides those commands to either CD-ROM unit 14 or CD-ROM
`auto-changer 7 to initiate playback. Id. at 3536. According to Petitioner,
`and in line with the first argument, the communication between support
`module 12 and the connected devices undergo format conversion to or from
`USB. Id. at 36 (citing Ex. 1002 ¶ 72).
`We are not persuaded by these arguments. As to the first argument,
`Petitioner has not shown that Ido’s “form conversion” of data involves an
`algorithm that is the same as or equivalent to the algorithm disclosed in
`Table 1. Ido’s formatting is for transmission of data from USB to a PCI
`Bus. The claim, however, requires that the car stereo command is converted
`to a “new command that is in a format compatible with the after-market CD
`player.” Ex. 1001, 18:12 (referring to the algorithm disclosed in Table 1)
`(emphasis added). Thus, in a system where the car stereo and the after-
`market CD player are not compatible because they do not understand each
`other’s commands, the formatting from PCI bus to USB bus format (and
`vice versa) alone does not address the incompatibility problem. Ido’s
`formatting of data from one bus protocol to another may solve part of the
`incompatibility—that is, Ido modifies the signal carrying the car stereo
`command so that the command may be transported to a different type of data
`bus. But unless the car stereo command itself is changed to a new command
`that the after-market CD player can execute, the command from the car
`stereo will not be understood by the CD player, even though the format of
`the signal carrying the command is changed from one data bus protocol
`format to another. Ido does not disclose that any command is changed into a
`new command that is compatible with the device being controlled. And the
`Petition does not make any attempt to show that Table 1’s algorithm, which
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`Petitioner identified in connection with the corresponding structure, is in any
`way used in Ido’s form conversion.
`As to the second argument, the same failure discussed above
`regarding the lack of the Table 1 algorithm pervades. The Petition relies on
`Ido’s support module converting data to or from USB, not on converting an
`incompatible command to a new, compatible command. Id. at 3536. In
`addition to the lack of an algorithm, Petitioner has failed to identify a
`microcontroller as required. Although Petitioner states that Ido’s support
`module and Herley’s controller are an “interface” (id. at 32 (“Herley
`discloses controller 104 (the interface) receiving a control command from
`user interface 102”); id. at 35 (“commands input through faceplate 15 (part
`of Ido’s car stereo) and received by the support module 12 (Ido’s
`interface)),” Petitioner does not identify any particular microcontroller in
`either Ido or Herley that is programmed to perform the identified “form
`conversion” of Ido, much less the Table 1 algorithm that the claim requires.
`Patent Owner points out some of the above identified deficiencies in
`the Preliminary Response. Prelim. Resp. 15. But more importantly, Patent
`Owner points out that Petitioner has relied on an erroneous interpretation of
`Patent Owner’s position regarding claim scope. Id. Specifically, Petitioner
`bases its contention—that the claim language is met by a mere conversion
`from USB format to another format—on Petitioner’s narrow interpretation
`of Patent Owner’s infringement contentions. Id.; Pet. 34 (Petitioner arguing
`that Patent Owner’s district court infringement contentions are that
`converting commands to USB format meets the limitation). Patent Owner
`responds that its infringement contentions identify code or algorithms (not
`yet discovered), in accordance with Patent Owner’s position that the claim
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`requires algorithms of Table 1 (and, also, of Table 2). Prelim. Resp. 1516.
`We also note that the infringement contentions in the record are not limited
`to USB format conversion, but also describe the conversion of a command
`under BMW’s protocol to a device-specific protocol understandable to the
`after-market audio device. Ex. 1013, 7374. Thus, we are persuaded by
`Patent Owner’s arguments that Petitioner “misreads” Patent Owner’s district
`court contentions, and fails to identify, in any of the asserted references, the
`required microcontroller programmed to execute the required algorithm.
`Prelim. Resp. 15.
`We determine, therefore, on this record, that Petitioner has failed to
`demonstrate a reasonable likelihood of prevailing on its assertion that claim
`92 of the ’786 patent is unpatentable over any of the asserted references, and
`particularly, Herley and Ido.
`
`Alleged Obviousness of Dependent Claims 93, 94, 97, and 98
`E.
`Challenged dependent claims 93, 94, 97, and 98 depend directly or
`indirectly from claim 92. Petitioner presents argument and evidence
`mapping the limitations further recited in these dependent claims to Herley
`and/or Ido. Pet. 46–48. None of Petitioner’s additional mappings cure the
`deficiencies identified above. Accordingly, we determine that Petitioner has
`not established a reasonable likelihood of prevailing on its assertion that
`claims 93, 94, 97, and 98 of the ’786 patent are unpatentable over Herley,
`Ido, and Lutter.
`
`III. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that the Petition is denied.
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`For PETITIONER:
`
`Lead Counsel
`Lionel M. Lavenue
`lionel.lavenue@finnegan.com
`
`Back-up Counsel
`Cory C. Bell
`cory.bell@finnegan.com
`Kai Rajan
`kai.rajan@finnegan.com
`
`
`
`
`For PATENT OWNER:
`
`Lead Counsel
`Peter Lambrianakos
`
`Back-up Counsel
`Alfred R. Fabricant
`Vincent J. Rubino, III
`Timothy J. Rousseau
`Enrique W. Iturralde
`plambrianakos@brownrudnick.com
`afabricant@brownrudnick.com
`vrubino@brownrudnick.com
`trousseau@brownrudnick.com
`eiturralde@brownrudnick.com
`
`
`
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