Paper No. 30
`Trials@uspto.gov
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`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
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`CIRRUS DESIGN CORPORATION,
`Petitioner,
`
`v.
`
`HOYT AUGUSTUS FLEMING
`Patent Owner.
`
`__________
`
`IPR2020-00762
`Patent RE47,474 E
`
`__________
`
`Record of Oral Hearing
`Held: June 29, 2021
`__________
`
`Before JOSIAH C. COCKS, SCOTT C. MOORE, and
`STEPHEN E. BELISLE, Administrative Patent Judges.
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`IPR 2020-00762
`Patent RE47,474E
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`
`KEVIN WAGNER, ESQ.
`Faegre Drinker Biddle & Reath LLP
`2200 Wells Fargo Center
`90 S. Seventh Street
`Minneapolis, Minnesota 55402
`(612) 766-6922
`kevin.wagner@faegredrinker.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`MICHAEL DOWLER, ESQ.
`Park, Vaughan & Fleming LLP
`2820 Fifth Street
`Davis, California 95618
`(713) 821-1540
`mike@parklegal.com
`
`
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`The above-entitled matter came on for hearing on Tuesday, June 29, 2021,
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`commencing at 2:00 p.m. EDT, by video/by telephone.
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`IPR 2020-00762
`Patent RE47,474E
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`P-R-O-C-E-E-D-I-N-G-S
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`2:01 p.m.
`JUDGE COCKS: Good afternoon, and welcome to the board. We're
`here today for oral arguments in case IPR 2020-00762 involving Reissued
`Patent 47474. I am Judge Cocks, I'm joined on the panel by Judges Belisle,
`and Moore. Let's go ahead and begin with introduction of counsel. Would
`counsel for the petitioner please state their appearance today?
`MR. WAGNER: Yes your honor, this is Kevin Wagner of Faegre
`Drinker, with me is Joel Sayres, and Mr. Jonas.
`JUDGE COCKS: All right, thank you Mr. Wagner, and would
`counsel for the patent owner please state their appearance?
`MR. DOWLER: Good afternoon your honor, my name is Mike
`Dowler, I'm here on behalf of Mr. Fleming, the patent owner. Also with me
`is Greg Gardello.
`JUDGE COCKS: Thank you, could you say your last name again?
`MR. DOWLER: Dowler, D-O-W-L-E-R.
`JUDGE COCKS: All right, thank you Mr. Dowler.
`MR. DOWLER: You're welcome.
`JUDGE COCKS: Okay, as we set forth in the trial hearing order,
`each side has 60 minutes of argument time. Petitioner bears the burden of
`showing unpatentability, and will argue their case, and may reserve rebuttal
`time. Patent owner will then argue their opposition to petitioner's case, and
`may reserve surrebuttal time. Thereafter petitioner will argue their rebuttal,
`and patent owner will argue their surrebuttal. We have the parties'
`demonstrative electronic files before us, so we ask, so that we can follow
`along, when referring to the slide deck please identify the page number.
`And lastly, please mute yourself when you're not speaking. That being said,
`Mr. Wagner, you may proceed first.
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`MR. WAGNER: Thank you your honor. I'd like to reserve 15
`minutes for rebuttal.
`JUDGE COCKS: Thank you.
`MR. WAGNER: So, I'll start on slide two of the demonstratives,
`which sets forth the ground that we're asserting in the petition. It's only one
`ground, and it relies on the combination of the POH, James, and Hoffman.
`The POH sets forth an aircraft with all the components that are claimed,
`including the ballistic parachute. It also specifies the actions that are to be
`taken before applying a parachute. James, and Hoffman both set forth
`foster, and software based solutions for controlling parachute deployment.
`James in particular teaches to control parachute deployment using
`the autopilot, and to customize that to match the flight laws of an aircraft,
`which we'll get into. Then Hoffman really reinforced some of the teachings
`of the POH with his teaching to have an air speed limited deployment, as
`well as using a back up time lock feature. So, that's the combination that
`we're talking about. Turning to slide three, that combination in our view
`renders all of the challenged claims, claims 95 through 131, unpatentable as
`obvious.
`Note that the patent owner has disclaimed claim 125, so that one is
`no longer at issue. There are really two issues with this IPR that make it
`stand out from maybe your run of the mill IPR, and in my view should make
`this somewhat easier. If you turn to slide four, the first of those is that
`there's an earlier IPR with very similar grounds, IPR 2019 01566. That's the
`same patent, and largely the same combination of POH, and James being
`combined is the obviousness ground there.
`As you can see on slide five, the final written decision that your
`honors entered there found all the challenge claims obvious under that
`combination, and in doing so, rejected many of the same arguments that
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`IPR 2020-00762
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`we've seen in the briefing from Mr. Fleming in this case. Also rejected
`Fleming's gap filling argument about the software, and there being some gap
`with applying that software from James into the POH. It rejected Fleming's
`argument that autopilot programming was beyond the skill of a person of
`ordinary skill in the art.
`It rejected Fleming's argument that improved safety was an
`insufficient motivation to combine the references. And then Fleming, in that
`case, also made some arguments about teaching away, and autopilot
`limitations somehow teaching away from using the autopilot in a pressure
`deployment scenario, and that was also rejected. Turning then to slide six,
`the second factor here that I think makes this case somewhat unique is that
`Fleming has chosen not to put in any expert evidence. He chose not to cross
`examine our expert, Frank Hoffman, and he chose not to offer any response
`of expert testimony of his own.
`So, this is really a case where we already have a similar ground that's
`been established, and (audio interference).
`I'll turn now to the 47474 patents, and come back on that patent
`beginning with slide eight. We see here, this is the cover page of the patent,
`we've got the priority date in 2009, there's no issue around that. What the
`474 patent attempts to do is really claim conventional components, and
`conventional actions, and merely automating them.
`As you can see on slide nine, that the patent itself recognizes that the
`physical components its talking about here, being the ballistic parachute
`system, the pull handle, and the activation interface, processors, memory,
`these are all conventional components, the patent itself recognizes that, and
`there's really no dispute that the physical components here are not new.
`Similarly on slide nine, those components are all well known, and
`conventional, as of the priority date at issue here. And then on slide 11, our
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`expert has also established that the actions that are talked about in the
`challenge claims are conventional actions.
`So, you can see the opinion at the top of the slide that the standard
`flight maneuvers to prepare an aircraft for a deployment of a whole aircraft
`parachute are terminating engine power, leveling the wings, and pitching up,
`nothing new there. Moreover, the second quote before the priority date,
`microprocessor based systems for monitoring air speed, altitude, and
`attitude, and allowing deployment of a whole aircraft parachute only if those
`values were within predefined limits was also already known.
`So, these are really just conventional steps that the 474 patent is
`attempting to claim. Turning to slide 12 then, Mr. Hoffman further provided
`evidence that by the priority date, a person of ordinary skill in the art would
`have been familiar with systems for automatically controlling the aircraft
`using the autopilot. So, the idea of using an autopilot to accomplish these
`maneuvers of pitching up, reducing engine power, leveling the wings, et
`cetera, is also not new.
`And you can see an example, Mr. Hoffman a bunch of background
`references to demonstrate the state of the art in this regard, but you can see
`an example of this on slide 13 from a Popular Science magazine in 1947
`when the decision is made to deploy the parachute, you can see that the
`actions that are taken then are to pitch up with level wings in order to get
`your air speed down within the safety envelope of your parachute, and then
`it's only at that point that you deploy the parachute.
`So again, really conventional actions. Then we turn on slide 14 for
`the claim that the parties have focused on, claim 95. You can see there's a
`lot of text on this claim, we tried to simplify it on slide 15 by highlighting
`the first half of the claim that's really describing these conventional
`components. Again, I don't think there's any dispute that these are all
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`conventional, known components. The action of the dispute in this case is
`really about the second half of the claim, which we've blown up on slide 15
`for you.
`This portion of the claim deals with the machine readable
`instructions, the software, and the actions that that software is to perform.
`You can see that the basic steps are you perform an evaluation to see if it's
`safe to deploy the parachute. If it is safe, then you can deploy the parachute,
`if it's not safe, then you take actions of commanding reduction engine power,
`commanding climb, and commanding a decrease in aircraft roll until you get
`those safe conditions, and then it's at that point that you deploy the
`parachute.
`JUDGE COCKS: Counsel, this is Judge Cocks, one question, just as
`we look at slide 16. Is there anything particularly significant here that step C
`requires all three of those actions, the reduction of command, the reduction
`of engine power, command to climb, and command to decrease in aircraft
`roll, is there anything particularly significant about that?
`MR. WAGNER: No, I don't believe so. Patent owner makes some
`arguments that those three actions all need to be triggered based on the same
`criteria being evaluated, and I have some slides on that that we can touch on
`later, but it's really based on a misreading of the claims, where they're trying
`to read this first evaluation as being limited to only evaluating one
`parameter. As we'll see that, first of all the language is broad, it just says an
`evaluation of any kind. It doesn't say the evaluation of one, and only one
`parameter.
`Then when we look at the specification, it further backs that up by
`saying it actually could be a combination of parameters, and what the
`specification talks about evaluating is just whether it's safe to deploy the
`parachute. So, that necessarily involves looking at a combination of these
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`different parameters, and we don't think there's any issue around that at all.
`Turning to slide 17 then, there are some additional claims which add
`additional limitations that we've dealt with in our evidence. I don't think
`there's any dispute that any of these additional limitations really impart any
`sort of novelty, or nonobviousness, so I'm not going to dwell on them, but
`they're listed here for you.
`Then I'm going to get into our obviousness combination starting on
`slide 19 with the POH. So, the POH was published by Cirrus in 2003,
`distributed with every one of their SR22 aircraft, which is the aircraft that's
`described in the POH. No dispute that this is prior art, also no dispute that it
`was never considered by the patent office in connection with the 474 patent.
`Turning to slide 20 then, we see that the POH discloses an aircraft with all
`the conventional aircraft components. It also includes the Cirrus Airplane
`Parachute System, or CAP system, which is a ballistic parachute system, so
`that satisfies all those requirements in the claim as well.
`On slide 21 then, we can see that the POH further describes these
`conventional actions taken to ensure that your parachute deployment's going
`to be safe, I'll just walk through these briefly. The first is related to speed.
`So it says the maximum speed at which deployment has been demonstrated
`is 133 knots indicated air speed. And so you want to reduce your speed
`below that level, it goes on to say that however, if time and altitude are
`critical, or ground impact is imminent, CAP should be activated regardless
`of air speed.
`So, the teaching there is if you need to deploy the parachute, you
`want to look at your air speed, make sure your air speed is slow enough for
`the parachute to be safe, and then deploy. But if you run out of time, then
`you can deploy for that reason as well, regardless of air speed. Similarly on
`altitude, the POH teaches that chances of successful deployment increase
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`with altitude, so you want to be monitoring your altitude, and making sure
`you have sufficient altitude to deploy the parachute. Third, you want to also
`monitor your attitude, the POH teaches that CAP should be activated from a
`wings level, upright attitude if at all possible. So again, monitoring your
`roll, and if your roll is inverted, or not level, you should level it if it's
`possible. These are all express teachings of the POH.
`Turning to slide 22 then, the POH talks about some scenarios where
`you might need to deploy the CAP system, and the one that we really
`focused on is the piloting capacitation scenario, because in that scenario, you
`don't have the skilled pilot there to do these flight maneuvers manually, and
`so it lends additional credence to the idea of using the James, and Hoffman
`automated systems to carry out those actions automatically in the event that
`an unskilled pilot is the one left in the cabin of the aircraft to make the
`parachute deployment.
`That's an overview of the POH, and then I'll turn to James, starting
`on slide 24. We've got the cover page of James, the patent reference issued
`in 2002, again no dispute that it's prior art. Also no dispute that it was not
`considered by the PTO in connection with the 474 patent. And James
`discloses this semi-autonomous flight director, which is a processor based
`system for controlling the aircraft, and James teaches that its invention is
`there to provide for the safe operation of any aircraft by an unskilled pilot.
`So, it really taps into this pilot incapacitation scenario, where you don't have
`a skilled pilot available.
`If you look at slide 25, James emphasizes this, that it's intended to
`illuminate, or supplant the piloting skills normally required to fly an aircraft,
`and then it can provide for the safe operation of any aircraft by an unskilled
`pilot. So, it's exactly the scenario we're talking about. Slides 26, and 27
`then provide a little bit more detail about how James is intended to function.
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`In James you've got a couple of different ways of controlling the aircraft.
`You've got your joystick control, as well as the bank of switches, and if one
`of those switches is activated, or your joystick is activated, the signals from
`that go to this flight function direction interpreter, FDI, which is the first
`processor, it interprets the actions that the pilot is wanting to take.
`The FDI then communicates with the autopilot reprogrammer to
`communicate those desired actions, and the autopilot reprogrammer, turning
`to slide 27, looks up in PROM, that's the memory, looks up the software
`routine that's been programmed for that action, so the action can be carried
`out safely, and logically, and then the autopilot reprogrammer uses that
`software that's been programmed to program the autopilot, and the autopilot
`then executes that maneuver in a safe fashion.
`So, this system is used in a variety of functions, but the one that's
`most critical here is the parachute deployment function, and we can see on
`slide 28 that one of these switches that's provided in James expressly is for
`parachute deployment. Not only that, it does other things as well, it talks
`about using that switch to shut down, deploy parachute, activate beacons,
`and what not. Then in the second quote, you can see that those are
`exemplary actions, so James (audio interference) contemplates that
`additional actions could be added to that switch, saying it accomplishes such
`tasks as shutting off engines, terminating flight functions, and deploying an
`emergency parachute.
`Still further, on slide 29, James then teaches that all of its switches,
`and commands should be customized, including the parachute deployment
`switch, and it specifically says that you should customize that with respect to
`the unique combination of flight logs of the aircraft flown. The idea there is
`that each aircraft is going to have a different set of rules for how you
`accomplish a particular function safely.
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`So, for parachute deployment in the POH context, it has those rules
`that we looked at about monitoring, and making sure your air speed, altitude,
`and attitude are all safe, and so our position is that when James is
`implemented, the teachings of James are implemented on the POH, you're
`going to automate those same steps in the software so that it's performed
`automatically, and can be executed by an unskilled pilot in the event of pilot
`incapacitation. The third reference which --
`JUDGE COCKS: Counsel, let me ask you one question just so I
`have it straight. So, POH, its parachute deployment is strictly a mechanical
`operation, is that a fair characterization?
`MR. WAGNER: Yes.
`JUDGE COCKS: So, your combination will rely significantly on the
`functioning of James's semi-autonomous flight director, and all the functions
`that are associated with it as a part of parachute deployment?
`MR. WAGNER: We're relying on the teaching of James around
`using a processor, and software to deploy the parachute. So, we've actually
`laid out a couple of different options how that could be implemented. One
`option would be to take the teachings around software, and implement that
`by adding it to the POH. A second option would be to take the whole SFV
`system of James, and bring it in, either of those alternatives would be
`something within the person of ordinary skill in the arts ability.
`JUDGE COCKS: Thank you.
`MR. WAGNER: Yes your honor. The third reference then is
`Hoffman, which is summarized in slide 31. So, Hoffman is another patent
`reference filed January 24th, 2008, again, no dispute that it's prior art, also
`no dispute that it was never considered by the patent office in connection
`with the 474 patent. Again, and this is a processor based system for
`controlling parachute deployment, and really meshes well with the POH's
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`teachings regarding air speed when time is critical, because it limits
`parachute deployment until your air speed is below a target air speed. Then
`if a time has elapsed, and you haven't been able to get below that air speed
`threshold, then a command deployment of the parachute regardless of air
`speed.
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`You can see on slide 32, we've got the algorithm from the Hoffman
`reference, which is set forth on the left in figure two, and the steps that are
`highlighted in pink are checking, and rechecking air speed to see if it's below
`your preset threshold, which would be your safe parachute deployment
`envelope as far as air speed goes, and if it is, then you generate this event
`trigger signal, which is the signal to deploy the main parachute.
`Alternatively, on slide 33, there's this second track highlighted in
`blue where Hoffman teaches to monitor the time that's passed since the
`original parachute deployment request was sent, and if you exceed a
`maximum, then you also generate the event trigger signal, and deploy the
`main parachute then. So, it's describing this as a back up safety time out
`feature. So, these are the three references that we think should be combined,
`and when combined, render the claims obvious as we'll get into starting with
`slide 35.
`So, the first point I want to make about the combination is that the
`POH is really within the intended applications of James, and Hoffman.
`James talks specifically about its system being intended for use in any
`manned, or unmanned helicopter, or aircraft equipped with an autopilot
`employing a digital flight control system. Hoffman talks about its system
`being used to rescue aircrafts, and then the POH is a manned aircraft that has
`a digital autopilot system.
`This combination is also supported by detailed expert testimony, as
`you can see on slide 36. We've offered the declaration of Frank Hoffman,
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`he's actually the inventor of the Hoffman reference, he's also got 29 years of
`experience in the relevant space, worked for a number of years for VRS,
`which is one of the pioneers ballistic parachute systems, so really the perfect
`person who you'd want opining on this stuff. And he's gone through these
`references in detail, and opined really with undisputed testimony at this
`point, that these references would be combined, and render the claims
`obvious.
`On slide 37, this is what we saw earlier, you can see that Mr.
`Hoffman's opined that the POH does disclose all the aircraft components
`that are recited in the challenge claims. On slide 38 we've got some further
`testimony from him that the flight maneuvers necessary to ensure safe
`parachute deployment are also found in the POH, and those maneuvers
`include decreasing air speed, increasing altitude, decreasing roll, activating
`an ELT, or emergency locator transmitter, and then only deploying the
`parachute once the required air speed is below the target threshold, and
`having the time out feature as well, so he's really addressed each, and every
`one of those limitations.
`On slide 39 Mr. Hoffman goes into James, and Hoffman, and really
`states there that James discloses software, and memory that can be used to
`automatically use the autopilot to perform the various flight actions,
`including parachute deployment, and Hoffman discloses triggering that
`whole aircraft deployment based on either air speed, or a time out feature,
`again using software, and a microprocessor. On slide 40, you can see again
`we're emphasizing this teaching of James to account for the flight laws of
`the particular aircraft flown, and to customize your software according to
`those flight laws.
`Then on slide 41, we're back to those flight laws that we looked at
`earlier in the POH, of monitoring speed, altitude, and attitude, and deploying
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`once you get those safe conditions. So, the combination we're talking about
`here is really modifying the James software based on these flight conditions,
`customizing it, and then including that software on the aircraft of the POH.
`Finally on slide 42, Hoffman just really reinforces those teachings, that you
`can use air speed as a triggering event, and that you can -- it's beneficial to
`have a back up time out.
`Finally on slide 43, just emphasizing again here that all three
`references are expressly concerned with safely, and making sure that
`maneuvers can be conducted safely by an unskilled operator. So, James
`talks about, again, eliminating, or supplanting the piloting skills normally
`required. Hoffman talks about having safety systems, and being able to
`operate in complete autonomy, and then the POH, again, is talking about
`using this parachute system in the event of pilot incapacitation, where you
`don't have a skilled pilot available. So, these are additional reasons why
`you'd put these three references together.
`Moving to slide 44 then, I did want to emphasize that we set forth in
`the petition, and in the supporting evidence that there are some alternative
`ways to combine these references. I think this goes to the question earlier
`about triggering conditions for example. That was one of the alternatives we
`set forth specifically that air speed, altitude, and, or attitude are all
`conditions that could be used to trigger these various maneuvers. Similarly
`with respect to the software processor, there's the question of what processor
`are you going to use.
`This is the testimony that I referenced earlier, where he said there's
`multiple ways you could make this combination, you're combining the
`teachings of these references, and one way you could do that is by adding
`the machine readable instructions (audio interference) adding that to the
`POH. An alternative way would be to use the whole SFV system of James,
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`including the APR, and add that whole system to the POH, those are both
`within our combination.
`Then finally, activation interfaces, I think this has taken on a little bit
`less importance as we've gone along here, but we also set forth alternatives
`there. Where either you could use the, there's a T handle in the POH that
`you pull down from the ceiling, that you could use that system, and combine
`it with the teachings of James, and use that as the electrical trigger to start
`the parachute deployment system, and software. Or alternatively you could
`leave that T handle there if you needed to deploy the parachute immediately,
`and just simply add the James switch to your dashboard as an alternative
`way of doing parachute deployment when you want the automated
`procedure, so those are both within our combination as well.
`When you make this combination, and you combine the teachings
`from the POH, and the aircraft of the POH with the teachings of James, and
`Hoffman to control parachute deployment using software, and the autopilot,
`all these limitations are present from claim 95, and the other claims, and
`therefore all the claims should be found to be unpatentable as obvious. I
`want to pause there, and move to a response to some of the arguments that
`patent owner has set forth in response to our combination. So, this starts on
`slide 47, we have an overview of the arguments that were seen in the
`briefing, and some of these arguments maybe have fallen out, it's a little
`unclear to us, we're not seeing them in patent owner's demonstratives, but I'll
`walk through the ones that we saw in their briefing.
`First, they argued that there wasn't a prima facie case of obviousness,
`they said it was vague, and unclear whether the entire SFV of James would
`be incorporated into the POH. As we talked about, this gets into one of the
`alternatives that we set forth. Second, they made the same gap filling
`argument that they made in the prior IPR about the machine readable
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`IPR 2020-00762
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`instructions, and really trying to look at references individually, rather than
`looking at the combination of references. Third, they made this argument
`about the triggering condition, and trying to assert that it should all need to
`be triggered by the same brand that was being tested.
`Then fourth, they made a teaching away argument, again similar to
`the arguments they made in the prior IPR, we're not seeing that one in their
`demonstratives, so that one may have dropped out. They also dropped any
`arguments regarding secondary considerations of nonobviousness in their
`brief.
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`JUDGE COCKS: Counsel, let me just step in, and say arguments
`that may, or may not be in the demonstratives, that's not so much the focus,
`it's in the briefing, it's something to be considered.
`MR. WAGNER: Understood, and I'll try to address those as well
`your honor. So, the first point I want to make about these arguments on
`slide 48 is again, just a reminder that there's no expert evidence to support
`any of them. None of them are based on a cross examination of our expert,
`none of them are supported by any expert testimony, all the expert evidence
`is to the contrary, that these references would be combined in a way that
`renders the claims obvious. I'm going to touch first on the two arguments
`that we've seen, that are coming through in the demonstratives, and then I'll
`go back to some of the others, to your point your honor.
`So, I'm going to flip ahead to slide 52, and the first argument that we
`see patent owner making in their demonstratives is really focused on trying
`to interpret references individually, and say well the POH is the only
`reference that discloses a ballistic parachute system, but the software
`components are coming from James, and Hoffman. And that's really why
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`this is an obviousness combination, you have to look at those teachings
`together, not separately, and patent owner made a very similar argument in
`the prior IPR, trying to say you need to look at each reference individually
`regarding the software limitations, and your honors rejected that argument
`under the basic concept of obviousness, that you look at the combined
`teachings in the references, and what those combined teachings would have
`suggested to one of ordinary skill in the art.
`That's really what's going on here, patent owner in our view is really
`trying to misinterpret our obviousness combination to make this point. And
`we can see that on slide 53, just setting forth again, what our obviousness
`combination is. Where you've got James expressly teaching that its
`parachute deployment software routine should be customized to account for
`the flight logs of the particular aircraft being flown, that it can be safely
`performed by an unskilled operator.
`You add to that, the teaching of the POH about what those actions
`should be, the same actions in the challenged claim, as well as the aircraft
`components, and Hoffman's reinforcement of the air speed limited
`deployment, and backup time out feature, and then this is really our
`argument here in the last bullet on slide 53, where we say thus in
`programming James's deploy parachute software routines to be safe, and
`logical on an aircraft such as the SR22, a person of ordinary skill in the art
`would have followed the explicit directions of James to reprogram the flight
`logs for that aircraft, which are the flight maneuvers disclosed in the POH,
`and reinforced by James into those software routines.
`So, we're talking about using those teachings of the software, and
`using those teachings on an aircraft such as the SR22, and patent owner
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`really just seems to be ignoring that that isn't the combination we set forth.
`We set that combination forth pretty clearly, we think in the petition, and in
`the reply. Just to highlight a couple of other cites from the petition for you,
`one is that petition at paper two at 23 where we said it would have been
`obvious to a POSA to combine the POH's aircraft components, and
`instructions regarding manual actions to be taken based on a decision to
`deploy the whole aircraft ballistic parachute with James, and Hoffman's
`processor based systems for deploying a whole aircraft parachute, and