Trials @ uspto.gov
`571-272-7822
`
`Paper 27
`Date: August 1, 2023
`
`UNITED STATES PATENT AND TRADEMARKOFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`DJI EUROPEB.V.,
`Petitioner,
`
`Vv.
`
`TEXTRON INNOVATIONSINC.,
`Patent Owner.
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`
`Before MICHAEL R. ZECHER, SCOTT A. DANIELSand
`FREDERICK C. LANEY, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`571-272-7822
`
`Paper 27
`Date: August 1, 2023
`
`UNITED STATES PATENT AND TRADEMARKOFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`DJI EUROPEB.V.,
`Petitioner,
`
`Vv.
`
`TEXTRON INNOVATIONSINC.,
`Patent Owner.
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`
`Before MICHAEL R. ZECHER, SCOTT A. DANIELSand
`FREDERICK C. LANEY, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`IPR2022-00453
`Patent 8,078,395 B2
`
`I. INTRODUCTION
`
`DJI Europe B.V., (DJI” or “Petitioner’’) filed a Petition requesting
`
`inter partes review (“IPR”) of claims 1—7 and 9-18 of U.S. Patent No.
`
`8,078,395 B2 (Ex. 1001, “the °395 patent’). Paper 1 (“Pet.”). Textron
`
`Innovations, Inc., (“Textron” or “Patent Owner”’) filed a Preliminary
`
`Responseto the Petition. Paper 6 (“Prelim. Resp.”). We also authorized,
`
`and Petitioner and Patent Ownerfiled, a Preliminary Reply and Preliminary
`
`Sur-reply narrowly tailored to address Patent Owner’s Fintiv arguments in
`
`the Preliminary Response. Papers7, 9.
`
`On August 3, 2022, we instituted trial for claims 1—7 and 9-18 of the
`
`°395 patent on all grounds of unpatentability alleged in the Petition. Paper
`
`10 (“Decision to Institute” or “Inst. Dec.”). After institution of trial, Patent
`
`Ownerfiled a Patent Owner Response. Paper 16 (“PO Resp.). Petitioner
`
`timely filed a Reply. Paper 17 (Pet. Reply). Subsequently, Patent Owner
`
`filed a Sur-Reply to address certain arguments raised in Petitioner’s Reply.
`
`Paper 20 (“PO Sur-Reply).
`
`A hearing for this proceeding was held on May 11, 2023. The
`
`transcript of the hearing has been entered into the record. Paper 26 (“Tr.”).
`
`Wehavejurisdiction under 35 U.S.C. § 6(c). This Final Written
`
`Decision is issued pursuant to 35 U.S.C. § 318(a).
`
`For the reasons that follow, we determine that Petitioner has metits
`
`burden of showing by a preponderanceof the evidencethat claims 1—7 and
`
`9-18 are unpatentable.
`
`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 LLCarethe real parties in interest. Pet. 83. Patent Ownerstates
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`2
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`IPR2022-00453
`Patent 8,078,395 B2
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`that Textron Innovations, Inc., Bell Textron Inc., and Textron Inc. are the
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`real parties in interest. Paper 5, 2 (Patent Owner’s Mandatory Notices).
`
`B. Related Matters
`
`The parties indicate that the °395 patent has been asserted against
`
`Petitioner in Textron Innovations Inc. v. DJI Europe B.V.et al., No. 6:21-cv-
`
`00740 in the U.S. District Court for the Western District of Texas. Pet. 83;
`
`Paper5, 2.
`
`Patent Ownerindicates that Petitioner has filed additional petitions for
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`inter partes review challenging patents held by Patent Owner, IPR2022-
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`00162 for U.S. Patent No. 9,162,752 B2, and IPR2022-00163 B2 for
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`U.S. Patent No. 10,243,647. Paper5, 2.
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`C. The ’395 Patent (Ex. 1001)
`
`The °395 patent, titled “Control System for Automatic Circle Flight,”
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`describes a flight control system for an aircraft “that provides for automatic
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`flight around a circle of a commandedcenter and radius at a commanded
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`altitude and velocity.” Ex. 1001, 2:22—24. The °395 patent describes that
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`the system is specifically “for automatically controlling the flight of an
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`aircraft, such that the aircraft flies toward a selected area of interest and
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`circles a selected point in the area at a specified radius, altitude, and
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`velocity.” Id. at 3:25—28. The ’395 explainsthat
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`[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.
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`
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`IPR2022-00453
`Patent 8,078,395 B2
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`Figure 2A of the ?395 patent is reproduced below.
`
`a4
`
`36
`
`3b,
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`SENSOR
`
`|
`
`
`
`
`GROUND
`CONTROL
` POSTON
`
`STATION
`
`
`
`
`
`
`
`
`
`|
`FLIGHT
`AUTOMATIC
`vetonny |
`
`GIRCLE-FUGHT
`CONTROL
`at-7L. SENSOR
`|
`
`DEVICES
`
`
`‘
`
`
`) ALTITUDE
`3
`49. SENSOR _
`
`
`‘
`45
`
`FIG. 2A
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`Figure 2A illustrates a schematic view offlight control system 21
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`“configured for use with a remotely-piloted aircraft.” Jd. at 2:59-61. Flight
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`control system 21 includes receiver 37 carried on an aircraft 23 (not shown)
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`that receives commanddata from groundcontrol station 36. Id. at 4:19-23.
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`The command data from groundcontrol includes parameters for a desired,
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`1.e. commanded, circling maneuverthat is sent from the receiverto
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`automatic circle-flight control system 35. Jd. at 4:23—24.
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`Asalso shown in Figure 2A,position sensor 39, velocity sensor 41,
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`and altitude sensor 43 provide automatic circle-flight control system 35 with
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`“data representing the location, velocity, and altitude of aircraft 23.” Jd. at
`
`4:24-26. The °395 patent explains that “[s]ystem 35 uses the data provided
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`by sensors 39, 41, 43 and the commanddata from receiver 37 to operate
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`flight control devices 45 on aircraft 23 for causing aircraft 23 to fly
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`according to the commanded parameters.” Jd. at 4:37-41. Alternatively, the
`
`°395 patent describes that
`
`all commands may be input into system 35 before flight of the
`aircraft, and this method may be useful whentheaircraft is to fly
`a predetermined route to a circle,
`fly the circle using the
`
`
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`IPR2022-00453
`Patent 8,078,395 B2
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`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 is reproduced below.
`
`NORTH vs EAST
`COORDINATE PLOT 2
`Sees
`
`y
`
`ve
`
`RA *
`|
`;
`+:}
`a :
`:;
` 89
`<
`
`
`
`9é
`
`DISTANCE NN
`(FD
`
`_
`
`
`500
`
`7000 1500 2000 2500 3000
`DISTANCEE £1)
`FIG. 4
`
`Figure 4 illustrates “a plot of a groundtrack of the flight of an aircraft, the
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`flight of the aircraft being controlled by the system of FIG. 2A to fly a
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`circular path in a clockwise direction, the aircraft having started outside of
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`the prescribed circle.” Jd. at 2:66—3:2. Figure 4 depicts groundtrack 85
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`intercepting circle 87 at tangent point 97 to fly the circle at radius 91 around
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`center 89. Id. at 7:39-47. The °395 patent explains, with respect to Figure
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`4, that “[w]henthe aircraft is within a selected distance of tangent point 97,
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`system 35 provides a bank commandthatacts to maintain the aircraft flight
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`path at radius 91 around center 89.” Jd. at 7:51.
`
`The °395 patent describesthat the flight control system can be used
`
`with any type of manned or unmannedaircraft. /d. at 9:10-12. And
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`
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`IPR2022-00453
`Patent 8,078,395 B2
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`additional system features can include “automatic or autonomous search
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`patterns; the ability to detect, follow, and circle a target; collision avoidance
`
`capability; and override methods for returning control to a pilot.” Jd. at
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`9:13-16.
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`D. Challenged Claims!
`
`Claims 1, 9, and 14 are independent. Each of claims 2—7, 10-13, and
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`15-18 ultimately depends from independent claims 1, 9 and 14, respectively.
`
`Claims 1 and 2 illustrate the claimed subject matter and are reproduced
`
`below with certain limitations of interest in italics:
`
`1. [Ipre] A flight control system foran aircraft, the system
`comprising:
`
`[la] means for receiving commandsignals representing
`commanded values of a location of a geospatial point and a
`radius about
`the geospatial point
`for defining a circular
`groundtrack;
`
`[1b] means for determining a geospatial location of the
`aircraft and providing a location signal representing the location
`of the aircraft; and
`
`[1c] a controllerfor commandingflight control devices on
`the aircraftfor controlling theflight ofthe aircraft, the controller
`also being configured to receive the commandsignals and the
`location signal;
`
`[1d] wherein the controller uses the commandsignals 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.
`
`' For consistency, weutilize Petitioner’s claim limitation numbering scheme
`for limitations [1pre]—[1d] and [2pre]—[2c]. See Pet. 25-49.
`
`6
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`
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`IPR2022-00453
`Patent 8,078,395 B2
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`2. [2pre] The flight control system according to claim 1,
`further comprising:
`
`[2a] means for determining a velocity of the aircraft and
`providing a velocity signal representing the velocity of the
`aircraft;
`
`[2b] wherein the command signals also represent a
`commandedvalue of a circle velocity; and
`
`[2c] wherein the controller is also configured to receive
`the velocity signal and operate the flight control devices to
`achieve and generally maintain the circle velocity along the
`circular groundtrack.
`
`Ex. 1001, 9:29-58.
`
`E. Prior Art and Asserted Grounds
`
`Petitioner asserts that claims 1-7 and 9-18 would have been
`
`unpatentable based on the following grounds:”
`
`1-7, 9-18|102(a) or (e)*
`1-7, 9-18
`
`103(a)
`
`* Petitioner supports its challenge with a Declaration of William Singhose,
`Ph.D. (Ex. 1004) and Patent Ownersupports its arguments presented during
`trial with the Declaration of Dr. C. Douglass Locke, Ph.D (Ex. 2016).
`> 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 to March 16, 2013, the pre-AIJA version of §§ 102
`and 103 applies. See Ex. 1001, code (86).
`* Ex. 1005, U.S. Pub. Appl. No. US 2005/0004723 A1 (pub. Jan. 6, 2005).
`> 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.
`
`7
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`
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`IPR2022-00453
`Patent 8,078,395 B2
`
`Il. ANALYSIS
`
`A. Legal Standards
`
`A “prior art reference—in orderto anticipate under 35 U.S.C. § 102—
`
`must not only disclose all elements of the claim within the four corners of
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`the document, but must also disclose those elements ‘arrangedas in the
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`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 mayanticipate without disclosing
`
`a feature of the claimed invention if such feature is necessarily present, or
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`inherent, in that reference.” Allergan, Inc. v. Apotex Inc., 754 F.3d 952, 958
`
`(Fed. Cir. 2014).
`
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
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`differences between the claimed subject matter and the prior art are such that
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`the subject matter, as a whole, would have been obviousat the time the
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`invention was madeto a person havingordinary skill in the art to which said
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`subject matter pertains. 35 U.S.C. § 103(a); KSR Int'l Co. v. Teleflex Inc.,
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`550 U.S. 398, 406 (2007). “[W]hen a patent claimsa structure already
`
`knownin the prior art that is altered by the mere substitution of one element
`
`for another knownin the field, the combination must do more than yield a
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`predictable result.” KSR, 550 U.S. at 416 (citing United States v. Adams,
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`383 U.S. 39, 50-51 (1966)). The question of obviousness is resolved based
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`on underlying factual determinations including: (1) the scope and content of
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`the prior art; (2) any differences between the claimed subject matter and the
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`prior art; (3) the level of ordinary skill in the art; and (4) when in evidence,
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`
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`IPR2022-00453
`Patent 8,078,395 B2
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`objective evidence of non-obviousness. Graham vy. John Deere Co.,
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`383 U.S. 1, 17-18 (1966).°
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`The Supreme Court madeclear that we apply “an expansive and
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`flexible approach”to the question of obviousness. KSR, 550 U.S. at 415.
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`Whethera patent claiming the combination of prior art elements would have
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`been obviousis determined by whether the improvement is more than the
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`predictable use of prior art elements according to their established functions.
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`Id. at 417. To support this conclusion, however, it is not enough to show
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`merely that the prior art includes separate references covering each separate
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`limitation in a challenged claim. Unigene Labs., Inc. v. Apotex, Inc.,
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`655 F.3d 1352, 1360 (Fed. Cir. 2011). Rather, obviousness additionally
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`requires that a person of ordinary skill at the time of the invention “would
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`have selected and combined those prior art elements in the normal course of
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`research and developmentto yield the claimed invention.” Jd.
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`Accordingly, an obviousness determination generally requires a
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`finding “that a person of ordinary skill in the art would have been motivated
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`to combine or modify the teachingsin the prior art and would have had a
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`reasonable expectation of success in doing so.” Univ. of Strathclyde v.
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`Clear-Vu Lighting LLC, 17 F.4th 155, 160 (Fed. Cir. 2021) (citing OST
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`Pharms., 939 F.3d at 1382 (quoting Regents of Univ. of Cal. v. Broad Inst.,
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`Inc., 903 F.3d 1286, 1291 (Fed. Cir. 2018))). “Whether the priorart
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`discloses a claim limitation, whether a skilled artisan would have been
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`motivated to modify or combine teachingsin the prior art, and whether she
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`would havehad a reasonable expectation of success in doing so are
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`© The parties do not present evidence or arguments regarding secondary
`considerations.
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`IPR2022-00453
`Patent 8,078,395 B2
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`questions of fact.” Strathclyde, 17 F.4th at 160. In determining whether
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`there would have been a motivation to combineprior art references to arrive
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`at the claimed invention, it is insufficient to simply conclude the
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`combination would have been obvious without identifying any reason why a
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`person of skill in the art would have made the combination. Metalcraft of
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`Mayville, Inc. v. The Toro Co., 848 F.3d 1358, 1366 (Fed. Cir. 2017).
`
`Moreover, in determining the differences between the prior art and the
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`claims, the question under 35 U.S.C. § 103(a) is not whether the differences
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`themselves would have been obvious, but whether the claimed invention as a
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`whole would have been obvious. Litton Indus. Prods., Inc. v. Solid State
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`Sys. Corp., 755 F.2d 158, 164 (Fed. Cir. 1985) (“It is elementary that the
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`claimed invention must be considered as a whole in deciding the question of
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`obviousness.”); see also Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530,
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`1537 (Fed. Cir. 1983) (“[T]he question under 35 U.S.C. § 103 1s not whether
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`the differences themselves would have been obvious. Consideration of
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`differences, like each of the findings set forth in Graham,is but an aid in
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`reaching the ultimate determination of whether the claimed invention as a
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`whole would have been obvious.”’).
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`Asa factfinder, we also must be aware “of the distortion caused by
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`hindsight bias and must be cautious of arguments reliant upon ex post
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`reasoning.” KSR,550 U.S. at 421. Applying these general principles, we
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`consider the evidence and argumentsof the parties.
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`B. Level of Ordinary Skill in the Art
`
`Thelevel of skill in the art is “a prism or lens” through which we view
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`the prior art and the claimed invention. Okajima v. Bourdeau, 261 F.3d
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`1350, 1355 (Fed. Cir. 2001). “This reference point prevents .
`
`.
`
`. factfinders
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`from using their own insight or, worse yet, hindsight, to gauge obviousness.”
`
`10
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`IPR2022-00453
`Patent 8,078,395 B2
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`Id. Moreover, “the inquiry into whether any ‘differences’ between the
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`invention andthe prior art would have rendered the invention obviousto a
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`skilled artisan necessarily depends on such artisan’s knowledge.”
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`Koninklijke Philips N.V. v. Google LLC, 948 F.3d 1330, 1337 (Fed. Cir.
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`2020) (citing Dow Jones & Co. v. Ablaise Ltd., 606 F.3d 1338, 1349, 1353
`
`(Fed. Cir. 2010) (affirming the district court’s grant of summary judgment of
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`invalidity in part because the obviousness“analysis requires an assessment
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`of the *.. . background knowledgepossessed by a person having ordinary
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`skill in the art’” (emphasis added))).
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`Factors pertinent to a determination of the level of ordinary skill in the
`
`art include: (1) educational level of the inventor; (2) type of problems
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`encounteredin the art; (3) prior art solutions to those problems; (4) rapidity
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`with which innovations are made; (5) sophistication of the technology; and
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`(6) educational level of workers active in the field. Lnv’t Designs, Ltd. v.
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`Union Oil Co., 713 F.2d 693, 696-697 (Fed. Cir. 1983) (citing Orthopedic
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`Equip. Co. v. All Orthopedic Appliances, Inc., 707 F.2d 1376, 1381-82 (Fed.
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`Cir. 1983)). Not all such factors may be present in every case, and one or
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`moreof these or other factors may predominate in a particular case. Id.
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`Moreover, these factors are not exhaustive but are merely a guide to
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`determining the level of ordinary skill in the art. Daiichi Sankyo Co. Ltd,
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`Inc. v. Apotex, Inc., 501 F.3d 1254, 1256 (Fed. Cir. 2007).
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`In determining a level of ordinary skill, we also may lookto the prior
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`art, which may reflect an appropriate skill level. Okajima, 261 F.3d at 1355.
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`Additionally, the Supreme Court informsusthat “[a] person of
`
`ordinary skill is also a person of ordinary creativity, not an automaton.”
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`KSR, 550 U.S. at 421.
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`11
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`In ourInstitution Decision we determined, in accordance with
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`Petitioner’s proposal, that a person of ordinary skill in the art at the time of
`
`the °395 patent
`
`would have had at least 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 of experience
`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.
`
`Inst. Dec. 14 (citing Pet. 18).
`
`Patent Ownerindicates that it does not necessarily agree with
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`Petitioner’s proposed level of ordinary skill in the art, but states that “Patent
`
`Ownerdoes not believe any differences would impact the conclusionsin this
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`inter partes review.” PO Resp. 5 (citing Ex. 2016 {{ 32-36.
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`Becausethere is no express dispute as to Petitioner’s suggested level
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`of ordinary skill in the art, and because Petitioner’s assessment 1s consistent
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`with the ’395 patent and asserted prior art, we rely on Petitioner’s proposed
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`level of ordinary skill in theart.
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`C. Claim Construction
`
`Weconstrue claims using the principles set forth in Phillips v. AWH
`
`Corp., 415 F.3d 1303, 1312-17 (Fed. Cir. 2005) (en banc), and related cases.
`
`37 C.F.R. § 42.100(b) (2021). Under that precedent, the wordsof a claim
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`are generally given their “ordinary and customary meaning,” whichis the
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`meaning the term would haveto a person of ordinary skill at the time of the
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`invention,in the context of the entire patent including the specification.
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`Phillips, 415 F.3d at 1312-13.
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`12
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`Patent 8,078,395 B2
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`I. Means-plus-function terms
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`In our Institution Decision we agreed with Petitioner’s assertion “that
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`the challenged claims include means-plus function limitations
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`‘presumptively governed by 35 U.S.C. § 112] 6.’” Inst. Dec. 15 (quoting
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`Pet. 7). Our chart below summarizes the means-plus-function limitations
`
`this function encompassesa receiver
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`and Petitioner’s proposed corresponding structure. Jd. 15-19.
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`the disclosed structure for performing
`
`means for receiving command
`signals representing commanded
`values (Claims I and 14)
`the disclosed structure for performing
`meansfor determining a
`geospatial location of the aircraft|this function encompassesa position
`andproviding a location signal
`sensor or a componentthat provides
`representing the location of the
`data representing the location of the
`aircraft (Claims I and 14)
`aircraft
`means for determining a velocity|the disclosed structure for performing
`of the aircraft and providing a
`this function encompassesa velocity
`velocity signal representing the
`sensor or a componentthat provides
`velocity of the aircraft (Claims 2|data representing the velocity of
`and 17)
`aircraft
`means for determining an altitude
`the ’395 patent specification discloses
`of the aircraft and providing an
`an altitude sensor 43 which provides
`altitude signal representing the
`altitude of the aircraft (Claims 4__|the altitude data
`and 18)
`
`Weexplained in our Institution Decision that, “[a|Ithough the
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`meaning of these limitationsis not disputed at this stage of the proceeding,
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`for purposes ofinstitution, and on the record before us at this point in the
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`proceeding, we are persuaded that Petitioner’s constructions of these terms1s
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`accurate.” Id. at 19. We also invited the parties to clarify any dispute
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`regarding these terms.
`
`/d. In its Patent Owner Response, Patent Owner
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`13
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`Patent 8,078,395 B2
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`raised no issue or dispute with respect to these means-plus-function terms.
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`See generally, PO Resp. Becausethere is no dispute in this proceeding that
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`the ’395 patent supports the relevant structure Petitioner has proposed as
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`corresponding to these means-plus-function terms and because this Decision
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`does not turn on any differences in constructions proposedby the parties for
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`these terms, we agree with and rely on Petitioner’s assertions of
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`corresponding structure for each of the above identified means-plus-function
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`terms.
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`2. Controller
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`Duringtrial, a dispute arose pertaining to the term “controller” recited
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`in independentclaims | and 14. See PO Resp. 11-17; Pet. Reply 2-8. The
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`question is whether or not “controller” is also a means-plus-function
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`limitation. For the reasons that follow, we determine that “controller” 1s not
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`a means-plus-function limitation.
`
`In determining whether a claim term invokes 35 U.S.C. § 112(6) “the
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`essential inquiry is not merely the presence or absence of the word ‘means’
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`but whether the words of the claim are understood by personsof ordinary
`
`skill in the art to have a sufficiently definite meaning as the name for
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`structure.” Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed.
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`Cir. 2015) (en banc in relevantpart).
`
`Patent Ownercontendsthat the “controller” limitations in claims 1
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`and 14 require construction because they invoke 35 U.S.C. § 112(6). Patent
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`Ownerargues that even though the “controller” limitations do notrecite
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`““means for’. .
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`. it still follows the ‘means for’ format and only substitutes
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`‘meansfor’ with ‘a controller for.’” PO Resp. 12. Patent Owner
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`acknowledges the presumption that “controller” is not a mean-plus-function
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`term, but asserts that the presumption is overcome in this case because “[t]he
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`14
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`‘controller’ limitation of Claims 1 and 14—e.g., ‘a controller for...
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`controlling the flight of the aircraft’—is a self-descriptive term that
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`describes an associated function without reciting structure for performing the
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`function.” Jd. at 13 (citing Ex. 1001, 9:38—41, 11:12—14; Ex. 2016 { 47).
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`Patent Ownerpoints to deposition testimony from Petitioner’s expert,
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`Dr. Singhose, who wasasked, “if something is generating that control signal,
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`it is a controller?” Dr. Singhose responded “[y]eah, I think generally that’s
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`the way we would use the term.” /d. at 14 (citing Ex. 2015, 102:18—103:12;
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`Ex. 2016 J 49-51). Patent Ownerargues, that Dr. Singhosealso stated
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`during his deposition that a “controller” could be “electrical,” “mechanical,”
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`“electromechanical,” “chemical,” or “biological.” /d. (citing Ex. 2015 at
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`80:12—81:14; Ex. 2016 451). Based on these arguments and Dr. Singhose’s
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`testimony, Patent Owner argues that “controller”is a verbal construct for
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`“anything that can ‘command|] flight control devices on the aircraft.” Id.
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`Also, Patent Ownerargues, “[c]laims | and 14 include express ‘meansfor’
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`elements and the ‘controller’ limitation of Claims 1 and 14 simply follows
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`the same means-plus-function format by replacing ‘means’ with an
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`equivalent non-structural term.” /d. at 15.
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`It is well settled that limitations that do not use the word “means”
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`create a rebuttable presumption that 35 U.S.C. § 112(6) does not apply. See
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`Williamson, 792 F.3d at 1348 (Fed. Cir. 2015) (The Federal Circuit
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`explaining that “the failure to use the word “means”also creates a rebuttable
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`presumption—this time that § 112, para. 6 does not apply.”). We initially
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`consider a plain reading of claims 1 and 14, which as Patent Ownerpoints
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`out, in addition to “controller,” includes specific “means for receiving” and
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`“means for determining” limitations. Ex. 1001, 9:31—38, 11:5-12, see also
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`Interactive Gift Exp., Inc. v. Compuserve Inc. , 256 F.3d 1323, 1331 (Fed.
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`15
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`Cir. 2001) (When construing claims, our “focus must begin and remain
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`centered on the language of the claims themselves.”). Even a cursory review
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`of the claims indicates that the claim drafter clearly understood howtocraft
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`a limitation in terms of mean-plus-function language, in that this convention
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`wasused for instance in limitations [la] and [1b].
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`/d. The claim drafter
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`made a conscious decision however, in limitation [1c], not to use the same
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`convention, but to recite specifically “a controller.” Jd. Given this explicit
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`change of convention, we do not discern persuasive evidence in the claim
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`languageitself that suggests the drafter intended to use “controller”as
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`simply a nonce word to signify a means-plus-function limitation. In fact,
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`because the drafter expressly did not use “means for” language, it more
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`likely reveals that the drafter did not intend to define “controller” as a
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`means-plus-function limitation, but as a specific structural elementof the
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`claimed flight control system.
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`Also, based on the antecedent basis of “a controller,” the claims
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`subsequently recite “the controller.” Jd. at 9:39-42. A reasonable reading of
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`the claims1s that “the controller” is not a nonce word, but references
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`structure, namely a flight control computer, which physically receives
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`signals and, based on those signals, actively controls other flight control
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`devices on the aircraft. For instance, claim onerecites “the controller also
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`being configured to receive the commandsignals and the location signal.”
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`Id. Claim 1 further recites the requirementthat “the controller uses the
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`commandsignals and location signal to operate the flight control devices to
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`control the flight of the aircraft. Id. at 42-44. Indeed, the Microsoft
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`Computer Dictionary defines “controller” as “[a] device that other devices
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`rely on for access to a computer subsystem.” Ex. 3001, Microsoft Computer
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`Dictionary, Microsoft Press, 2002. It may be, as Dr. Singhosepointsout,
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`16
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`that a controller can be, technologically speaking, “electrical,”
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`“mechanical,” “electromechanical,” “chemical,” or “biological,” but this
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`does not mean that a person of ordinary skill in the art would not understand
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`a “controller” as a structural article or physical device, i.¢., a flight control
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`computer, “to operate the flight control devices to control the flight of the
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`aircraft” as called for in claims 1 and 14. See Samsung Elecs. Am., Inc. v.
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`Prisua Eng'g Corp., 948 F.3d 1342, 1354 (Fed. Cir. 2020) (“The question
`
`whether the term ‘digital processing unit’ invokes section 112, paragraph 6,
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`depends on whether personsskilled in the art would understandthe claim
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`languageto refer to structure, assessed in light of the presumption that flows
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`from the drafter's choice not to employ the word “means.””’).
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`Dr. Singhose clarified his position on this issue during his deposition
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`explaining that “I mean, sometimesit’s called a controller. Sometimesit can
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`-- control block.” Ex. 2015, 64:15-17. When asked in the context of a
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`mechanical prosthetic limb, Dr. Singhose further explained that
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`[i]n that kind of case, the nerve signals come down and get
`intercepted by another physical device, a controller downthere.
`Andthenthat controller converts, generally amplifies that signal,
`and then sendsthat signal out to the motors that are drivingthis.
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`Id. at 77:14—21. Dr. Singhosethustestified that a controller is a physical
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`device. Dr. Singhose further explained that a controller can exist in the
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`context of, e.g., electrical, mechanical and chemicalfields. /d. at 80:12-
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`81:14. This is not a particular concern because the technological scope of a
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`knownstructural term does not meanit is not understoodas structure by
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`those of skill in the art. See Skky, Inc. v. MindGeek, s.a.r.l., 859 F.3d 1014,
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`1019 (Fed. Cir. 2017) (The Federal Circuit explaining that “it is sufficientif
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`the claim term is used in commonparlanceor by persons of skill in the
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`17
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`pertinent art to designate structure, even if the term covers a broadclass of
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`structures and even if the term identifies the structures by their function.”’).
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`Patent Ownercites to Blackboard, Inc. v. Desire2Learn, Inc., 574
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`F.3d 1371, 1382-83 (Fed. Cir. 2009), arguing that just as the Federal Circuit
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`found the term “access control manager”to “simply [be] an abstraction that
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`describes the function of controlling access,” we should similarly construe,
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`“controller” as not “impart[ing] sufficient structure to avoid means-plus
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`function interpretation.” PO Resp. 14-15. Petitioner argues that
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`“controller” and “access control manager”are different terms and that
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`Blackboard “does not inform what a skilled artisan would understand a
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`‘controller’ to be.” Pet. Reply n. 1. Although the Court did consider “access
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`control manager” in a means-plus-function analysis, it did so to determine
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`whetheror not there was sufficient correspondingstructure recited in the
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`specification regarding the “computer software feature known as the ‘access
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`control manager’”so as to avoid purely functional claiming by the
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`undisputed means-plus-function limitation, 1.e., “means for assigning a level
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`of access to and control of each datafile.” See Blackboard, 574 F.3d at
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`1382-83 (The Federal Circuit describing that “[t]he ACM is essentially a
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`black box that performsa recited function. But how it doesso is left
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`undisclosed.”’). In this case, different from Blackboard, a person of ordinary
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`skill in the art would understand the claims and the specification to explain
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`that the controller is a special purpose device,1.¢., a “flight controller” “for
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`commandingflight control devices on the aircraft,” and “uses the command
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`signals and location signal to operate the flight control devices to control the
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`flight of the aircraft.” See, e.g., Ex. 1001, 2:34—40, 9:38—44, 10:27. Patent
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`Owner does not draw our attention to any cases where a “controller” has
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`been determined a means-plus-function limitation or a nonce word.
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`18
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`On the facts and evidencein this case the presumption against means-
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`plus-function treatment is not overcome. The claims themselves are
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`reasonably understood by those of ordinary skill in the art to recite sufficient
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`structure, namely “a controller,” that communicates with flight control
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`devices on the aircraft and is “configured to” perform the ascribed function
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`of “intercepting the circular groundtrack and then generally maintaining a
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`flight path along the circular groundtrack.” Ex. 1001, 9:38-39.
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`Accordingly, with respect to the claimed “controller,” Petitioner is not
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`required under 37 C.F.R. § 42.104(b)(3) to identify the specific portions of
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`the patent specification that describe the structure corresponding to a
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`particular mean-plus-function limitations.
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`Apart from Patent Owner’s argument that “controller” should be
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`interpreted as a mean-plus-function limitation, the parties do not argue for an
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`express construction of any claim term and our analysis does not turn on any
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`such construction. Accordingly, we determinethatit is not necessary to
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`expressly construe any claim term for purposes of this Decision. See Vivid
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`Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)
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`(The Court explaining that “only those terms need be construedthat are in
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`controversy, and only to the extent necessary to resolve the controversy.”).
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`D. Ground 2: Claims I—7 and 9-18 — Obviousness over Duggan
`(Ex. 1005)
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`Petitioner essentially argues Grounds 1 and 2 together, asserting in the
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`heading for Section VI.A ofits Petition that “Claims 1—7 and 9-18 Are
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`Anticipated (Ground 1) and/or Rendered Obvious (Ground 2) by Duggan.”
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`Pet. 19. Weinitially address the issue of obviousness becauseit is
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`dispositive of the grounds remaining. On the
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