Trials@uspto.gov .
`571-272-7822
`
`i
`oe
`
`Paper 10
`Entered: August 3, 2022
`
`_
`
`UNITED STATES PATENT AND TRADEMARKOFFICE
`
`BEFORE THE PATENT TRIAL ANDAPPEAL BOARD
`
`- DJIEUROPEB.V.,
`Petitioner,
`
`Vv.
`
`~TEXTRON INNOVATIONS INC.,
`Patent Owner.
`
`IPR2022-00453
`Patent 8,078,395 B2_
`
`Before MICHAEL R. ZECHER, SCOTT A. DANIELSand
`FREDERICKC. LANEY, Administrative Patent Judges.
`DANIELS,AdministrativePatentJudge.
`
`/
`
`DECISION
`Granting Institution ofInter Partes Review
`35 US.C. § 314
`
`
`571-272-7822
`
`i
`oe
`
`Paper 10
`Entered: August 3, 2022
`
`_
`
`UNITED STATES PATENT AND TRADEMARKOFFICE
`
`BEFORE THE PATENT TRIAL ANDAPPEAL BOARD
`
`- DJIEUROPEB.V.,
`Petitioner,
`
`Vv.
`
`~TEXTRON INNOVATIONS INC.,
`Patent Owner.
`
`IPR2022-00453
`Patent 8,078,395 B2_
`
`Before MICHAEL R. ZECHER, SCOTT A. DANIELSand
`FREDERICKC. LANEY, Administrative Patent Judges.
`DANIELS,AdministrativePatentJudge.
`
`/
`
`DECISION
`Granting Institution ofInter Partes Review
`35 US.C. § 314
`
`
`
`[
`
` -PTAB Routing Sheet
`
`|
`
`|
`
`Application #
`
`12/064,490
`
`oO DocumentDate 8/3/2022 Doc Code
`
`| TRIAL.REQ.G
`(if not listed).
`
`,
`
`[] APDKM ©
`
`Appeal Docketing Notice
`
`[] APAR -
`Admitistrative Remand to Examiner
`
`[_] APBD
`
`Notice of Defective Brief
`
`EX PARTE APPEAL CODES|
`
`[-] APDR a (J awa
`
`BPAI Decision- Examiner Reversed.
`
`Waiverof Hearing by Appellant
`
`[_] APDs
`Dismissal ofAppeal
`
`*
`
`|
`
`CO AP/W
`- Request to Withdraw Appeal by Appellant
`
`LJ appr.
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`[7] Bprr
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`Request for Reconsideration of BPAI
`‘
`i,
`BPAI Decision- Requirement Under196(D) Decision
`
`|
`.
`(] arcu
`LJ APLW
`[] LET.
`Confirmation of Hearing by Appellant
`BPAI Appeal Dismissed/Withdrawn
`~
`Miscellaneous Communication to Applicant
`( arp1. Dy apse ———éwLL PED,
`
`Decision on Reconsideration - Denied
`
`Notification of Appeal Hearing
`
`Decision on Reconsideration - Granted-in-Part
`
`Decision on Reconsideration- Granted .
`
`[_] APbD2
`[_].APpD3 _
`CT APDA a
`[] appn
`
`BPAI Decision- ExaminerAffirmed
`:
`
`O APOH
`Dy aren
`| Capra
`( avrn
`
`Petition Entered
`
`[J PET.41.3
`
`Petition under 41.3 to Chief Administrative
`Patent Judge
`[] PETDEC
`
`Petition Decision
`
`~ & 327
`[] wac
`
`‘Miscellaneous Communication to Applicant
`
`Mail returned to USPTO as undelivered
`
`Request for Oral Hearing
`
`(
`
`Hearing Postponement Denied
`
`,
`
`.
`
`Appeal Hearing Postponement Granted
`
`BPAIDecision 196(B)
`
`;
`
`[] APDP
`
`BPAIDecision- Examiner Affirmed in Part
`
`Appeal Postponement of OralHearing
`Request
`:
`
`C] appr
`
`Panel Remand to Examiner by BPAI
`
`Letter Withdrawing/Vacating Office Action
`
`[_] RETMAIL
`
`+
`
`ré
`
`i
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`
`
`IPR2022-00453.
`Patent 8,078,395 B2
`
`‘L INTRODUCTION.
`DJJ Europe B.V., (“DJI” or “Petitioner”) filed a Petitionrequesting
`interpartes review (“IPR”) of claims 1-7 and 9-18 of US. Patent No.
`-
`8,078,395 B2(Ex. 1001, “‘the 395 patent”). Paper1 (“Pet.”). Textron —
`| - Innovations, Inc., (“Textron” or “Patent Owner”) filed a Preliminary
`Responseto the Petition. Paper6 (“Prelim. Resp.”). Wealso authorized,
`and Petitioner and Patent Owner filed, a Preliminary Reply and Preliminary
`Sur-reply narrowlytailored to address Patent Owner’s Fiintiv arguments in
`the Preliminary Response. Paper7, 9.
`‘Under 35 U.S.C.§ 3 14(a), an interpartes review maynotbeinstituted
`“unless .
`.
`. there is areasonablelikelihoodthatthe petitioner would prevail
`with respect -to at least 1 ofthe claims challenged inthepetition.” Upon :
`considerationof the arguments and evidence presented by Petitioner and °
`_ Patent Owner, we are persuaded that Petitioner has demonstrated a
`reasonable likelihood that it would prevail in showing the unpatentability of
`at least one ofthe challenged claims. See35 U.S.C. § 314(a). Accordingly,
`weinstitute an interpartes review ofthe challenged claims.
`A Real Parties in Interest
`|
`Petitioner states that DJI Europe B.V., SZ DJI Technology Co. Ltd.,
`DJI Technology,Inc., iFlight Technology Company Limited, and DJI
`Research LLCarethereal parties ‘in interest. Pet: 83. Patent Owner states
`‘thatTextron Innovations, Inc., Bell Textron Inc., and Textron Inc. are the
`realparties in interest. “Paper 5, 2.
`|
`- BL
`Related Maiters
`Theparties indicate that the *395patenthas been asserted against
`Petitioner in TextronInnovations Inc, v. DJIEurope BV. et al., No. 6:21-cv-
`
`.
`
`
`
`IPR2022-00453 _
`Patent 8,078,395 B2
`00740 in the U.S.District Courtfor the Western District of Texas. Pet. 83;
`Paper5, 2. )
`Patent Owner indicates that Petitionerhasfiled additionalpetitions for
`interpartes review challenging patents held by Patent Owner, IPR2022-
`00162 for U.S. Patent No. 9,162,752, and IPR2022-00163 for U.S. Patent
`No. 10,243,647. Paper 5, 2.
`C.
`The °395 Patent (Ex. 1001)
`The 395 patent, titled “Control System for Automatic Circle Flight,”
`describes a flight control system for an aircraft “that provides for automatic
`flight arounda circle of a commandedcenter andradius at-a commanded
`altitude and velocity.” Ex. 1001, 2:22-24. The ’395 patent describes that
`the system is specifically “for automatically controlling the flight of an
`aircraft, such that the aircraft flies toward a selected area of interest and
`circles a selected point in the area at a specified radius, altitude, and
`velocity.” Jd. at 3:25-28. The *395 explains that
`
`.
`
`[t]he control system requires only one point in space and a radius
`to define the circle and is useful for controlling the flight of
`manned and unmanned aircraft of all
`types, including
`helicopters, tiltrotors, and fixed-wing aircraft. The system is
`particularly suited for use in aircraft performing surveillance,
`search, rescue, and military missions.
`Id. at 3:31-37.
`|
`Figure 2A ofthe ’395 patent is reproduced below.
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`
`
`
`
`
`
`39
`
`|
`
`44
`
`43
`
`POSITION
`SENSOR
`
`poorest
`
`ALTITUDE
`SENSOR
`
`\
`
`37
`
`
`
`FIG. 2A
`
`
`AUTOMATIC
`FLIGHT
`
`
`
`—
`CIRCLE-FLIGHT
`| CONTROL
`
`
`
`CONTROL SYSTEM DEVICES
`
`
`
`35
`
`
`
`
`
`
`
`
`
`
`GROUND
`CONTROL
`STATION
`
`Figure 2A of the ’395 patent, reproduced above,illustrates a schematic view
`offlight control system 21 “configured for use with a remotely-piloted
`aircraft.” Id. at 2:59-61. Flight control system 21 includes receiver 37
`carried on-an aircraft 23 (notshown) that receives command data from
`ground control station 36. Id. at 4:19-23. The commanddata from ground
`control includes parameters for a desired,i.e. commanded, circling
`maneuverthat is sent from the receiver to.automatic circle-flight control
`|
`system 35, Id. at 4:23-24.
`,
`|
`As also shownin Figure 2A,position sensor 39, velocity sensor 41,
`andaltitude sensor 43 provide automatic circle-flight control system 35 with
`“data representing the location, velocity, andaltitude ofaircraft 23.” Id. at
`4:24-26. The 7395 patent.explains that “Ts]ystem 35 uses the data provided
`by sensors 39,41, 43 and the commanddata from receiver 37 to operate
`flight control devices45 onaircraft 23 for causing aircraft23 to fly
`_ according to the commanded parameters.” Jd. at 4:37-41, Alternatively, the
`"395 patent describesthat
`all commands may be inputinto system 35 before flight ofthe .
`aircraft, and this method maybe useful whenthe aircraft is to fly
`a predetermined route to a circle,
`fly the circle using the
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`commanded parameters for a selected amount of time,
`return to the launchsite or land at an alternate location.
`
`then
`
`Id. at 6:39-40.
`Figure 4 of the ’395 patent isreproduced below.
`
`NORTH vs EAST
`- COORDINATE PLOT
`
`DISTANCEN |
`(FT)
`
`-
`
`-500
`
`0
`
`500
`
`1000 1500
`DISTANCEE (FT)
`FIG. 4
`
`2000
`
`2500 3000
`
`Figure 4 ofthe °395 patent, reproduced above,illustrates “a plot ofaground
`track ofthe flight of anaircraft, the flight ofthe aircraft being controlled by
`the system ofFIG. 2A to fly a circular path iin aclockwise direction, the
`aircraft having started outside oftheprescribed circle.” Id. at 2:66-3:2.
`Figure 4 depicts groundtrack85 intercepting circle 87 at tangent point 97 to
`fly the circle at radius 91 around center 89. Id. at 7:39-47. The *395 patent
`explains, with respect to Figure 4, that “[w]hen theaircraftis within a
`selected distance of tangent point 97, system 35 provides a bank command
`that acts tomaintain the aircraft tight path at radius 91 around center 89.”
`
`'
`
`© Id. at 7:51-58..
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`The ’395 patent describes that the flight control system can be used
`with any type of manned or unmannedaircraft. /d..at 9:10-12. And
`
`additional system features can include “automatic or autonomoussearch
`patterns; the ability to detect, follow, and circle a target; collision avoidance
`capability; and override methodsfor returning controlto a pilot.” Jd. at
`9:13-16.
`|
`’
`D.
`
`Illustrative Claim
`
`Claims 1, 9, and 14are independent. Each of claims 2—7, 10—13, and
`15-18 ultimately depends from independent claims 1, 9 and 14, respectively.
`Claim1illustrates the claimed subject matter andis reproduced below:
`1. A flight control system for an aircraft,
`the system
`comprising:
`
`receiving command signals representing
`for
`- means
`commanded values of a location of a geospatial point and a
`radius about
`the geospatial point
`for defining a circular
`groundtrack;
`means for determining a geospatial location ofthe aircraft
`and providing a location signal representing the location of the
`aircraft; and
`
`a controller for commanding flight control devices on the
`aircraft for controlling the flight ofthe aircraft, the controller also
`being configured to receive the command. signals and the
`location signal;
`
`wherein the controller uses the command signals: and
`location signal to operate the flight control devices to control the
`flight of the aircraft for directing the aircraft toward a tangent
`point of the circular groundtrack for intercepting the circular
`_groundtrack and then generally maintaining a flight path along
`the circular groundtrack.
`
`Ex. 1001, 9:29-47,
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`
`Prior Art and Asserted| Grounds
`E.
`Petitioner asserts that claims 1—7 and 9-18 would have been
`unpatentable based on the following grounds:! -
`
`
`
`
`-|35s.c.§ | Reference(s)/Basis
`
`Challenved’ | 35.US:C-§) . Seterene (S)/Basis
`
`
`
`
`
`
`
`
`
`
`1-7, 9-
`102
`1
`
`|1-7, 9-18 102
`|2
`2
`1-7, 9-18
`:
`Duggan
`
`
`
`
`
`ANALYSIS
`
`
`
`
`
`I.
`
`A. Discretionary Denial Under 35 U.S.C. § 314(a)
`- Patent Owner argues that the Board should denyinstitution ofthis
`inter partes review under Apple Inc. v. Fintiv, Inc., IPR2020-00019, Paper
`11 at 5-6 (PTAB Mar. 20, 2020). Prelim. Resp. 4-16.
`| According to our precedent, one way to mitigate concerns regarding
`duplicating work betweenthe district court litigation and the Boardis for a _
`petitioner to present a stipulation not to pursue in a parallel proceeding the
`same grounds or any grounds that could have reasonably been raised before
`the Board. Sotera Wireless, Inc. V. Masimo Corp., IPR2020-01019, Paper
`
`' Petitioner supports its challenge with a Declaration of William Singhose,
`Ph.D. (Ex. 1004). Seeinfra.
`* Ex. 1005, U.S. Pub. Appl. No. US 2005/0004723 A1 (pub.Jan. 6, 2005).
`3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 287-88 (2011), amended 35 U.S.C. § 103, effective March 16,
`2013. Because the application from which the ’395 patent issued has an
`effective filing date prior toMarch 16, 2013, the pre-AIA version of § 103
`applies. See Ex. 1001, code(86).
`* Pate, Billy B., Ex. 1006, A Rotorcraft Adaptation of Geneva Aerospace’s
`Variable Autonomy Control System, AMERICAN HELICOPTER SOCIETY 60™
`ANNUAL FORUM, Baltimore Maryland, June 7—10, 2004.
`
`
`
`\
`
`IPR2022-00453
`Patent 8,078,395 B2
`12 at 19 (PTAB Dec. 1, 2020) (precedential):accordKatherine K. Vidal,
`Interim Procedure for Discretionary Denials in AIA Post-Grant Proceedings
`‘withParallel District Court Litigation (June 21, 2022), 3 (“Consistent with
`[Sotera], the PTAB will not discretionarily deny institutionin view of
`parallel district court litigation where a petitioner presents a stipulation not
`to pursue in a parallel proceeding the same groundsor any groundsthat
`could have reasonably been raised before the PTAB.”).° Such a “stipulation
`ensuresthat an interpartes review is a ‘true alternative’ to the district court
`proceeding.” Sotera, Paper 12 at 19 (citing Sand Revolution IILLC y.
`Cont’l Intermodal Grp., IPR2019-01393, Paper 24, 12n.5 (PTAB June 16,
`2020)(informative, designated July 13, 2020)).
`In this proceeding, Petitioner stipulates that, “ifthe Board institutes
`this IPR,it will not pursuein the parallel proceeding the specificgrounds
`raised in this IPR or any other groundthat reasonably could have been raised
`in this IPR.” Reply 2 (citing Sotera, Paper 12 at 18-19). Such a stipulation
`“mitigates any concernsof duplicative efforts between the district court and
`the Board, as well as concernsofpotentially conflicting decisions.” Sotera,
`Paper 12 at 19: see also Sand Revolution I,Paper 24 at 12 n.5.
`|
`Because Petitioner’s stipulation eliminates the inefficiency of
`duplicative efforts and the possibility of conflicting decisions, we decline to
`exercise our authority to deny. institution of interpartes review based on the
`parallellitigation.
`
`> Available at https://www.uspto.gov/sites/default/files/documents/
`interim_proc_discretionary_denials_aia_parallel_district_court_litigation_m
`emo_20220621_.pdf
`
`!
`
`8
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`
`B. Discretionary Denial ofInstitution Under 35 U.S.C. § 325(d)
`
`Patent Owner argues the Board should éxercise its discretion to deny
`institution of interpartes review under 35 USC. § 325(d) because the
`“Patent Office explicitly considered Duggan during prosecution of the °395
`Patent.” Prelim. Resp. 19 (citing Ex. 1002, 55), Based on the record before
`us, we decline to deny institution of inter partes review under § 325(d), for
`the reasons discussed below.
`|
`
`Section 325(d) providesthat, in determining whetherto institute an
`
`‘inter partes review, “the Director may take into account whether, and reject
`the petition or request because, the same or substantially the sameprior art
`or arguments previously were presented to the Office.” 35 U.S.C. § 325(d).
`The Board uses a two-part framework in determining whetherto exercise its
`discretion under § 325(d), specifically:
`(1) whether the sameor substantially the sameart previously
`waspresented to the Office or whether the same or substantially
`the same arguments previously were presented to the Office; and
`(2)_if either condition’of [the] first part. of the framework is
`'
`_ satisfied, whetherthe petitioner has demonstrated that the Office
`erred in a manner material to the patentability of challenged
`claims.
`|
`.
`Advanced Bionics, LLC v. MED-EL Elektromedizinische Gerdte GmbH,
`IPR2019-01469, Paper 6 at 8 (PTAB Feb.13, 2020) (precedential).
`In applying the two-part framework, we consider the non-exclusive
`factors set forth in Becton, Dickinson andCo. v. B. Braun Melsungen AG,
`IPR2017-01586, Paper 8 (PTAB Dec. 15, 2017) (precedential in relevant
`part), which “provide useful insight into how toapply the framework” under
`-§ 325(d). Advanced Bionics, Paper6 at 9. Those non-exclusive factors
`include:
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`
`~
`
`the similarities and material differences between the
`(a)
`asserted art andthe prior art involved during examination;
`(b)
`the cumulative nature ofthe asserted art and the prior art
`evaluated during examination;
`.
`(c)
`the extent to which the asserted art was evaluated during
`examination, including,whether the prior art was the basis for
`rejection;
`(d)
`the extent of the overlap between the arguments made
`during exarnination and the mannerin which Petitionerrelies on
`theprior art or Patent Ownerdistinguishes the priorart;
`(e)
`- whether Petitioner has ‘pointed out sufficiently how the
`Examinererred in its evaluation of the assertedpriorart; and
`(f)
`the extent to which additional evidenceandfacts presented
`in the Petition warrant reconsideration of the prior art. or
`Becton, Dickinson, Paper8 at 17-18. “Tf, afterreview offactors(a), ‘and
`arguments.
`(d),it isdetermined that the sameorsubstantially the same art or arguments
`. previously were presented to the Office, then factors (c), (e), and (f).relate to
`whetherthe petitioner has demonstrated a material error by the Office.”
`Advanced Bionics, Paper6 at 10.
`‘Underthefirst part ofthe § 325(d) framework, the evidence
`demonstrates that Dugganwas previously presented to the Office during
`prosecution of the °395 patent. Ex. 1001, code(56). Petitioner concedes
`that “Duggan wascited on an IDS [information disclosure statement].”
`Pet. 15. Because Duggan is the basis foreach ofthe unpatentability
`challenges in this proceeding, wedeterminethat substantially the same art
`was before the Examiner during examination. Accordingly, we need not
`consider Becton, Dickinson factors (b) and (d), and instead turn to the
`second prong ofthe Advanced Bionics framework (i.e., Becton, Dickinson
`
`-
`
`~N
`
`10
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`factors (c), (e), and (f)). See Ocado Group, PLC v. AutoStore T:echnology
`AS, IPR2021-00398, Paper 10 at 20 (PTAB July 21, 2021).
`Becton, Dickinsonfactor(c) considers “the extent to which the
`asserted art was evaluated during examination, includingwhetherthe prior
`art was the basis for rejection.” Becton Dickinson, Paper 8at 17. Petitioner
`argues that “rt}here is no evidence showing the extent to which Duggan was
`evaluated during examination. The claims were allowed without any office
`
`action. The only reference to Dugganis the IDS signed by the Examiner.”
`
`Pet. 16. Patent Owner does not dispute this, presenting mainly a partial
`
`image of an IDS including the Examiner’s signature and the statement “AI
`References Considered Except Where Lined Through.” See Prelim. Resp.
`19-20. The fact that Duggan wasin fact not a basis for rejection weighs
`against exercising discretion to deny institution under § 325(d). See Intel
`Corp. v. Qualcomm Inc., IPR2019-00128, Paper 9, 16 (PTAB May29,
`2019).
`
`—
`
`Becton, Dickinsonfactor (e) considers “[w]hether Petitioner has
`pointed out sufficiently how the Examinererredin its evaluation of the
`asserted priorart.” Becton, Dickinson, Paper8 at 24. Petitioner argues “the
`Examinererred by failing to substantively consider Duggan. As explained
`above, during prosecution of the 395 patent, Duggan wascited on an IDS
`
`but not used by the Examinerfor any rejections, making its presence in the
`file history insufficient to warrant discretionary denial.” Pet.15. Patent
`Ownercountersthat“the Patent Office did consider an EPO [European
`Patent Office] officeaction that addressed claims the Petition characterizes
`as ‘effectively identical’ to the claims of the *395 Patent based on Duggan
`and provided extensive analysis comparing Duggan to those claims.”
`Prelim. Resp. 21 (citing Pet. 5—6; Ex. 1002, 5~56; Ex. 1003, 84-86). Patent.
`
`11
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`
`~
`
`Ownerconcludes, arguing that “the Notice of Allowability provided the
`Patent Office’s basis for allowing independent Claims 1, 9, and 14... over
`‘the prior art ofrecord,’ which included Duggan and the EPOoffice action |
`| analyzingDuggan with the European counterpart of the °395 Patent.” Jd. at
`22 (citing Ex. 1002, 43-44).
`|
`|
`The Notice ofAllowability simply states that “Tt|he prior art ofrecord
`fail to teach or fairly suggest with respect to claim 1,” and repeats the
`wherein clause languageofthe last paragraph of claim 1. Ex. 1002, 43.
`Similarly, for independent claims9 and 14, the Notice ofAllowability
`reiterated particular claim limitations that the Examiner apparently
`considered as not being taught or suggested in the prior art. Id. at 43-44.
`With respectto the 2010 EPOoffice actionassessing Duggan,this too was
`listed on anIDS but not substantively addressed during prosecution. Ex.
`1002, 55—56. Considering Petitioner’s arguments, evidence, and our
`analysis, below, weagree with Petitioner that the Office did not recognize
`the pertinence ofDuggan’s disclosure and the 2010 EPO office action and
`did not issue a rejectionbased on such disclosureand teachings. This
`constitutes Office material error. Accordingly, Becton, Dickinsonfactor (e)
`weighs against-exercising discretion to deny institution under § 325(d).
`Becton Dickinson factor(f) considers “the extent to which additional
`evidence andfacts presentedin the Petition warrant reconsideration ofthe
`prior art or arguments.” Becton, Dickinson, Paper8 at 18. As discussed
`below in Section II, we determine that Petitioner has established a
`reasonable likelihood that at least one of claims 1—7 and 9-18 of the ’395
`
`patent are unpatentable. Also, Petitioneroffers the declaration of Dr.
`Singhose, which wasnotavailable to the Examiner during prosecution ofthe
`application that became the ’395 patent. See, e.g., Pet. 27-28 (citing
`
`12
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`Singhose ¥ 71). Dr. Singhose’s declaration in this case contains new,|
`material, non-cumulative evidence that wasnot before the Examiner. As
`
`cited below in ourdiscussion ofthe prior art, we find Dr. Singhose’s
`
`testimony probative to issues of patentability and helpful to our
`considerationofthe prior art that was not substantively addressed by the
`Examiner during prosecution. Accordingly, Becton, Dickinsonfactor(f)
`weighs against exercising discretionto deny institution under § 325(d).
`Uponreview ofthe relevantprosecution history, the prior art referred
`to by Petitioner, and the parties’ arguments, we find that Petitioner has
`demonstratedithat the Office erred ina manner material to the patentability
`of the challenged claimsin the.’395 patent. Accordingly, we decline to deny
`institution under § 325(d).
`|
`C.
`Legal Standards
`A “prior artreference—in order to anticipate under 35 U.S.C. § 102—
`must not only disclose all elements ofthe claim.within thefour corners of
`the document, but must-also disclose those elements ‘arranged as in the
`claim.’” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir.
`2008) (quoting Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed.
`Cir. 1983)). “A single prior art reference may anticipate without disclosing
`a feature of the claimed invention if such feature is necessarily present, or
`inherent, in that reference.” Allergan, Inc. v. Apotex Inc., 754 F.3d 952, 958
`(Fed. Cir. 2014).
`.
`A patent claim is unpatentable under35 U.S.C. § 103 if the
`differences between the claimed subject matterand the prior art are suchthat
`the subject matter, as a whole, would have been obviousat the time the
`invention was madeto a person having ordinary skill in the art to which said
`subject matter: pertains. 35 U.S.C. § 103; KSR Int’ Co. v. Teleflex Inc., 550
`
`“2B
`
`
`
`IPR2022-00453
`Patent8,078,395 B2
`
`U.S. 398, 406 (2007). “[W]hen a patent claimsa structure already known in
`the priorart that is altered by the mere substitution of one elementfor
`another known in the field, the combination must do morethan yield a
`predictable result.” KSR, 550 U.S.at 416 (citing United States v. Adams,
`383 U.S, 39, 50-51 (1966)). Thequestion ofobviousnessis resolved based
`on underlying factual determinations including: (1) the scope and content of
`the prior art; (2) any differences between the claimedsubject matter andthe|
`prior art; (3) the lével of ordinary skill iin the art; and (4) whenin evidence,
`objective evidence ofnon--obviousness. Graham v. John Deere Co.,383
`U.S. 1, 17-18 (1966).
`Bo
`D.- Level ofOrdinary Skill in the Art
`Petitionerasserts that a person ofordinaryskill in the art at the time of
`the °395 patent
`|
`wouldhave had atleast an equivalent of a Bachelor’s degree
`from an accredited institution in mechanical engineering,
`aerospace engineering, electrical engineering, robotics. or any
`other discipline covering principles of the design or operation of
`autonomous flight control system for aircraft. A [person of
`ordinary skill in the art] -would also have one year ofexperience
`a working on. the design, development, : implementation, or
`operation of such technologies. Significant.work experience
`could substitute for formal education, and significant education
`could substitute for work experience.
`Pet. 18. Patent Owner does not address the level or ordinary skill in the art.
`| See generally Prelim. Resp.
`.
`|
`Onthis record, Petitioner’s proposed level of ordinary skill in the art
`is not disputed and is consistent with our review and understandingofthe.
`technology and descriptions in the 395 patentandthe asserted priorart
`references. Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001).
`
`14
`
`
`
` IPR2022-00453
`Patent 8,078,395 B2
`
`For purposes of this Decision, we rely on Petitioner’s proposed level of
`
`ordinary skill in the art.
`
`'
`
`|
`Claim Construction
`E.
`We interpret aclaim“using the sameclaim construction standard that
`would be used to construe the claim in a civil action under 35 U.S.C.
`282(b).” 37 C.F.R. § 42.100(b) (2020). Underthis standard, we construe
`the claim “in accordancewith the ordinary and customary meaning of such
`claim as understood by one of ordinary skill in the art and the prosecution
`history pertaining to the patent.” Id. Furthermore, at this stage in the
`proceeding, we expressly construe the claims only to the extent necessary to
`determine whetherto institute interpartes review. See Nidec Motor Corp.v.
`Zhongshan Broad Ocean MotorCo., 868 F.3d 1013, 1017 (Fed. Cir. 2017)
`(“[W]e need only construe terms ‘that are in controversy, and only to the
`extent necessary to resolve the controversy.
`(quoting Vivid Techs., Inc. v.
`Am.Sci. & Eng’g, Inc., 200 F.3d 795, 803(Fed. Cir. 1999))).
`Petitioner asserts thatthe challenged claims includes means-plus-
`function limitations‘‘presumptively governed by35 U.S.C. § 112 9 6.” Pet.
`7 (citing Williamsonv. Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir.
`2015). For each ofthe following asserted means-plus-function limitations,
`Petitioner describes certain structure disclosed in the specification ofthe
`°395 patent corresponding to the particular means language. See 37 C.F.R.
`§ 42.104(b)(3).
`|
`1.
`meansfor receiving command signals representing
`commandedvalues (Claims I and 14)
`
`999
`
`Petitioner argues that “the ’395 patent specification discloses ‘a
`
`receiver 37 carried on aircraft 23’ through which ‘an automaticcircle-flight
`control system 35... receives commanddata transmitted from a Ground
`
`15
`
`
`
`IPR2022-00453.
`Patent 8,078,395 B2
`
`Control Station (GCS) 36.” Pet. 7 (quoting Ex. 1001, 4:20—22) (citing Ex.
`
`1001, Fig. 2A). .Petitioner’s annotated version of Figure 2A is reproduced
`
`below.
`
`2
`
`36
`
`37-
`
`7|GROUND
`7] | CONTROL
`39
`A
`POSITION
`sb | STATION
`!
`
`SENSOR
`
`
`AUTOMATIC
`
`VELOCITY
`CIRCLE-FLIGHT
`SENSOR
`CONTROL SYSTEM ate
`
`
`
`ALTITUDE
`3 4
`SENSOR |
`FIG. 2A
`
`8
`
`Petitioner’s annotated version of Figure 2A from the °395 patent, reproduced
`above,illustrates a schematic view offlight control system 21 and highlights
`receiver 37 carried on the aircraft. Id. at 8. According toPetitioner, a
`person ofordinaryskill in the art would have understoodthat the disclosed
`structure for performing this function encompasses a receiver. Id. at 8-9
`(citing Singhose fj 39-41).
`
`2. meansfor determining a geospatiallocation ofthe
`aircraft andproviding a location signal representing the
`location ofthe aircraft (Claims 1 and 14)
`Petitioner argues that, “[flor the correspondingstructure, the °395
`patent specification discloses ‘at least one position sensor 39.’” Id. at 9
`(quoting Ex. 1001, 4:26-27) (citing Ex. 1001, Fig. 2A). Petitioner’s
`annotated version of Figure 2A is reproduced below.
`
`16
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`
`
`37
`GROUND
`
`
`
`, CONTROL
`
`
`
`
`RECEIVER
`“POSITION
`STATION
`
`
`“SENSOR.
`
`
`
`
`
`AUTOMATIC
`
`
`CIRCLE-FLIGHT
`CONTROL
`ON
`
`
`
`
`
`DEVICES
` CONTROL SYSTEM
`
`
`
`
`35
`45
`
`| FIG. 24
`
`FLIGHT
`
`"|
`
`ALTITUDE
`SENSOR
`
`89
`
`A
`
`43
`
`Petitioner’s annotated version of Figure 2A from the ’395 patent, reproduced
`above,illustrates a schematic view offlight control system 21 andhighlights
`: position sensor 39. Id. Accordingto Petitioner,a person of ordinary skill in
`the art“would have understoodthat the disclosed structure for performing
`this function encompasses a position sensor or a component that provides
`data representing the location ofthe aircraft.” Jd. (citing Ex. 1001, 4:24-29;
` Singhose {ff 42-44).
`|
`|
`3.
`meansfor determining a velocity ofthe aircraft and
`. providinga velocitysignal representing the velocity of
`the aircraft (Claims 2 and 17)
`oo
`Petitioner argues that, “[flor the corresponding structure, the°395
`patent spetification discloses. ‘alt least one velocity sensor 41 [which]
`provides the data representing the velocity ofaircraft 23.” Id. at10 (quoting
`Ex. 1001, 4:29-3 1) (citing Ex. 1001, Fig. 2A). Petitioner’s annotated
`version of Figure 2A is reproduced below.
`
`17
`
`
`
`IPR2022-00453 _
`Patent 8,078,395 B2
`
`ALTITUDE |_
`SENSOR
`
`39
`
`43
`
` 37
`GROUND
`
`STATION
`
`CONTROL
`
`
`
`
`
`FLIGHT
`AUTOMATIC
`VELOCITY.
`CIRCLE-FLIGHT-
`CONTROL
`
`
`447SENSOR_|
`DEVICES
`CONTROL SYSTEM.
`
`
`
`
`
`
`
`
` . 36 | 45°
`
`FIG. 2A
`Petitioner’s annotated version ofFigure 2A from the °395 patent, reproduced
`above, illustrates a schematic viewof flight control system 21 and highlights
`velocitysensor 41. Id. at 11. According to Petitioner, a person of ordinary
`skill in the art “would have understoodthat the disclosed structure for
`r
`performing this function encompasses a velocity sensor or a component that
`provides data representing the velocity of aircraft.” Id. (citing Ex. 1001,
`4:24-26, 4:29-33; Singhose ¥ 4546).
`4.
`meansfor determining analtitude ofthe aircraft and
`providing an altitude signal representing the altitude of
`the aircraft (Claims 4 and 18)
`Petitioner argues that, “Tflor the corresponding structure, the °395
`patent specificationdiscloses ‘[a]n altitude sensor 43 [which] provides the
`altitude data.’” Jd. at 12(quoting Ex. 1001; 4:35-36) (citing Ex. 1001, Fig.
`2A). Petitioner’s annotated version of Figure 2A is reproduced below.
`
`37
` ‘
`*|GROUND
` CONTROL
` POSITION
`RECEIVER
`
`n
`
`36
`
`SENSOR
`
`
`
`
`
`
`AUTOMATIC
`.
`FLIGHT
`CIRCLE-FLIGHT
`1 CONTROL
`
`
`
`
`CONTROL SYSTEM DEVICES
`
`
`39
`
`Al
`
`STATION.
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`
`Petitioner’s annotated version of Figure 2A from the ’395 patent, reproduced
`above,illustrates a schematicview of flight control system 21 and highlights
`altitude sensor 43. Jd. Accordingto Petitioner, a person of ordinary skill in
`the art “would have understood that the disclosed structure for performing
`this function encompassesan altitude sensor or a component thatprovides
`altitude data.” Jd. (citing Ex. 1001, 4:2426, 4:35-36; Singhose J 47-48).
`. PatentOwner contendsthat with respect to claim construction,
`“[w]hile Patent Owner doesnot necessarily agree with Petitioner’s proposed
`constructions, it is not necessary for the Board to construeclaim termsto
`deny institution.” PO Resp. 4,
`Weconstrue means-plus-function or step-plus-function limitations by
`determining what the claimed function is, and identifying the structure or
`materials disclosed in the specification that correspond to the means for
`performing that function. See.Kemco Sales, Inc. v. Control Papers Co., 208
`F.3d 1352, 1360 (Fed. Cir. 2000). Although the meaning of these
`limitations is not disputed at this stage of the proceeding, for purposes of
`institution, and on therecord before us at this point in the proceeding, we are
`persuaded that Petitioner’s constructions ofthese termsis accurate. To the
`extent these terms and their constructions may be disputed, the parties
`should clarify their positions in future briefing.
`F.
`Grounds I and 2: Claims I—7, 9-18 — Alleged Anticipation and
`Obviousness over Duggan (Ex. 1005)
`On this record, Petitioner has established a reasonable likelihood of
`prevailing onits assertionthatat least one of claims 1-7 and 9-18,is
`anticipated or obvious over Duggan for the reasons explained below.
`
`19
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`1.
`“Duggan (Ex. 1005)
`
`Titled “Vehicle Control System Including Related Methods and
`Components,” Duggan relates to control systems and methods for unmanned
`aerial vehicles (UAVs). Ex. 1005 451. Duggan describes that“the present
`invention generally pertain[s] to a variable autonomy control system
`(VACS)architecture that enables, among other characteristics, a general
`simplification of UAV operation and control.” Jd. 454. In particular,
`Duggan describesa UAV. flight control system in which the VACS
`architecture
`
`enables a man-in-the-loop(i.e., the operator) to intuitively assign
`and deploy one or more UAV’s in accordance with available
`control behavior parameters .
`.
`. [t]he architecture is distributed
`by design so that appropriate learning, decision-making and
`action behaviors are resident onboard the vehicle and supported
`with autonomousfunctionality whennecessary.
`
`Id. 4 68. Duggan explains that the VACScan be used inall types of
`unmanned vehicles, including “airplanes, helicopters, micro air vehicles
`(MAV’s), missiles, submarines, balloonsor dirigibles, wheeled road
`vehicles, tracked ground vehicles(1.e., tanks), and the like.” Jd. 451. Figure
`1 of Dugganis reproduced below.
`
`20
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`@a~
`
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`
`PROGRAMMED||MANUAL FAULT
`
`MANEU
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