Trials@uspto.gov
`571-272-7822
`
`Paper 10
`Entered: January 13, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNDER ARMOUR,INC.,
`Petitioner,
`
`Vv.
`
`ADIDASAG,
`Patent Owner.
`
`Case IPR2015-01532
`Patent 8,652,009 B2
`
`Before JENNIFER S. BISK, MICHAELJ. FITZPATRICK,and
`JUSTIN BUSCH,Administrative Patent Judges.
`
`BUSCH, Administrative Patent Judge.
`
`DECISION
`Institution of /nter Partes Review
`37 CEFR. $ 42.108
`
`
`571-272-7822
`
`Paper 10
`Entered: January 13, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`UNDER ARMOUR,INC.,
`Petitioner,
`
`Vv.
`
`ADIDASAG,
`Patent Owner.
`
`Case IPR2015-01532
`Patent 8,652,009 B2
`
`Before JENNIFER S. BISK, MICHAELJ. FITZPATRICK,and
`JUSTIN BUSCH,Administrative Patent Judges.
`
`BUSCH, Administrative Patent Judge.
`
`DECISION
`Institution of /nter Partes Review
`37 CEFR. $ 42.108
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`I. INTRODUCTION
`
`Under Armour,Inc. (“Petitioner”) filed a Petition for inter partes
`
`review of claims 13—15, 17, 18, and 20 (“the challenged claims”) of U.S.
`
`Patent No. 8,652,009 B2 (Ex. 1001, “the 009 patent”). Paper 1 (“Pet.”).
`
`Adidas AG (“Patent Owner”) filed a Preliminary Response. Paper8
`
`(“Prelim. Resp.”). Institution of an inter partes review is authorized by
`
`statute when “the information presented in the petition .. . and any
`
`response .. . showsthat there is a reasonable likelihood that the petitioner
`
`would prevail with respect to at least 1 of the claims challenged in the
`
`petition.” 35 U.S.C. § 314(a); see 37 C.F.R. § 42.108. Upon consideration
`of the Petition, we determine the information presented shows a reasonable
`likelihood that Petitioner would prevail in establishing the unpatentability of
`
`at least one claim. Accordingly, weinstitute an inter partes review.
`
`A. Related Matters
`
`Theparties identify the district court proceeding adidas AG v. Under
`
`Armour, Inc., Case No. 14-130-GMS(D. Del.) as a related matter. Pet. 1;
`
`Paper 5, 1. Petitioner also has filed petitions for inter partes reviews of
`
`eight other patents: three other patents asserted in the district court
`
`proceeding and five patents related to the ’009 patent. Paper 5, 1.
`
`B. The ’009 Patent
`
`The ’009 patentis directed to “modular personal network systems and
`
`methods” in which “wireless networks of individual components .
`
`.
`
`. can be
`
`easily added to or removed from the network to change its functions, and in
`
`which the individual components are worn,carried, or used on or about the
`
`person of the user.” Ex. 1001, 1:20—25.
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`Relevant to the challenged claims, the ’009 patent describes guidance
`
`functionsthat “may include providing position, elevation, and speed
`
`information, providing route guidance, and collecting and annotating
`
`position information with text, audio, video, and personal data” and
`
`“recommending anathletic training route based on desired workout
`
`parameters.” Ex. 1001, 4:47-53. The ’009 patent describes using a global
`
`positioning system (GPS)or other location devices, including an elevation
`
`monitor and a compass.
`
`/d. at 10:7—-9. The 009 patent may collect, upload,
`
`and display location data, provide route guidance functions, and
`“recommenda route in a later athletic session, based on a desired distance,
`elevation profile, or difficulty,” including “automatically guid[ing a user]
`through the recommendedroute,” or “simulat[ing] a previous route.” /d.;
`
`see also id. at 11:37-49 (describing travel-related functions).
`
`C. Illustrative Claim
`
`Amongthe challenged claims, claim 13 is the only independent claim
`
`and is reproduced below:
`
`13. A method for recommendinga route for traversal by
`an individual, comprising:
`
`storing data associated with one or more routes available
`to be traversed by an individual;
`receiving position data relating to a position of the
`individual; and
`
`processing the position data with one or more processors
`and recommending a route for traversal by the individual from
`the stored route data based on the position data.
`
`Ex. 1001, 72:21-29.
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`D. Asserted Grounds of Unpatentability
`
`Petitioner contends that the challenged claims are unpatentable based
`
`
`
`on the following specific grounds:
`
`~ Reference(s)
`
`
`Bouve and DeLorme?
`—'|_
`
`Kim?
`
`
`
`jallengedClaims—
`
`
`Basis. : oa Ne
`
`
`35.U.S.C. § 102(b)
`13, 14,17
`
`35 U.S.C. § 103(a)
`13, 18, 20
`35 U.S.C. § 102(b)
`13-15, 17, 20
`
`
`
`Pet. 9-37. In its analysis, Petitioner relies on the declaration testimony of
`
`Shawn Burke, Ph.D. Ex. 1003.
`
`Il. DISCUSSION
`
`A. Claim Construction
`
`In an inter partes review, we construe claim terms in an unexpired
`
`patent according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); Jn
`
`re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1275~79 (Fed. Cir. 2015).
`
`Consistent with the broadest reasonable construction, claim terms are
`
`presumedto have their ordinary and customary meaning as understood by
`
`a person ofordinary skill in the art in the context of the entire patent
`
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`
`2007). “In determining the meaning of the disputed claim limitation, we
`
`look principally to the intrinsic evidence of record, examining the claim
`
`languageitself, the written description, and the prosecutionhistory, if in
`
`| U.S. Patent 5,648,768, issued July 15, 1997 (Ex. 1004, “Bouve”).
`2 U.S. Patent 6,321,158, issued Nov. 20, 2001, (Ex. 1005, “DeLorme”).
`3 U.S. Patent 5,742,922, issued Apr. 21, 1998 (Ex. 1006, “Kim”).
`
`4
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`evidence.” DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 469 F.3d
`
`1005, 1014 (Fed. Cir. 2006) (citing Phillips v. AWH Corp., 415 F.3d 1303,
`
`1312-17 (Fed. Cir. 2005) (en banc)).
`
`We construe only those claim terms in controversy, and we do so
`
`only to the extent necessary to resolve the controversy. See Vivid Techs.,
`
`Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999). On the
`
`present record, no claim term requires an express construction.
`
`Wenote, however, that Patent Owner argues the “recommending a
`
`route .. .” limitation, whichis recited in claim 13, requires that the route
`
`recommendationis “based only on the received position data relating to a
`
`single position of the user.” Prelim. Resp. 8-9 (emphases added). Patent
`
`Owner’s proposed construction unduly narrowsthe scope of the
`
`“recommending a route. . .” limitation beyond whatis recited by
`
`introducing the concepts that: 1) the route recommendation cannotbe
`
`determined using factors other than the position data; and 2) the position
`
`data is only a single position of the user.
`
`With respect to the recommendation being based only on the
`
`received position data, we are not persuadedthat the claim language or
`
`specification is so limiting. The claim merely recites that a routeis
`
`recommended“based on the position data,” and does not exclude using
`
`other factors when determining which route(s) to recommend. Patent
`
`Owner’s argumentthat the route recommendation must be based on only a
`
`single position is similarly unpersuasive. See Prelim. Resp. 8-9. As an
`
`initial matter, it is nonsensical to argue that a system providesa route
`
`recommendation using only a single position. Regardless of how the
`
`second position is received or determined, a system necessarily requires
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`both a starting position and an ending position in order to provide route
`recommendations. To the extent Patent Owneris arguing that the claim
`
`recites receiving position data related to only one position, the claim does
`
`not exclude receiving additional position data. Moreover, a route
`
`recommendation that is “based on” twopositions also is necessarily “based
`
`on” each of those positions.
`
`B Asserted Grounds Based on Bouve or Bouve and DeLorme
`
`Petitioner contends claims 13, 14, and 17 are unpatentable under
`
`35 U.S.C. § 102(b) as anticipated by Bouve. Pet. 9-19. Petitioner also
`
`alleges claims 13, 18, and 20 are unpatentable under 35 U.S.C. § 103(a) as
`
`obvious in view of Bouve and DeLorme. /d. at 19-26. Relying on the
`
`testimony of Dr. Burke, Petitioner explains how Bouveallegedly discloses
`the subject matter of claims 13, 14, and 17 and how Bouve and DeLorme
`allegedly teach the subject matter of claims 13, 18, and 20.
`/d. at 9-26
`
`(citing Ex. 1003).
`
`1. Overview ofBouve (Ex. 1004)
`
`Bouveis directed to a “system for identifying and presenting
`
`information relating to travel within a geographic region,” including “a data
`
`base for storing a plurality of travel routes within the geographic region and
`
`one or more typesoftravel information associated with one or more ofthe
`
`plurality of travel routes.” Ex. 1004, Abs. , 2:5—10, 2:49-54. Bouve
`explains that a user may employvariousinput devices to enter two locations
`between whichthe user wishesto travel and, in response to the entered
`
`locations, the system retrieves at least one route and travel information
`
`associated with the route(s) from the database(s) containing the plurality of
`stored routes and travel information. Jd. at 2:10-19, 2:54-60. Bouvethen
`
`6
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`uses any of several various audio or visual display devices to present the
`
`retrieved route(s) and travel information to the user. Jd. at 2:19—22, 2:60-
`
`61.
`
`Bouvediscloses “tabulat[ing] the retrieved routes andtravel
`
`information and stor[ing] the tabulated information” in the database(s) for
`
`future use and calculating “mileage and/ortravel time indicators to locate
`
`each item ofretrieved travel information with respect [to the] retrieved
`
`route(s).” Jd. at 2:32-38.
`
`2. Overview ofDeLorme (Ex. 1005)
`
`DeLormeis directed to an “Integrated Routing/Mapping Information
`
`System (IRMIS)”that provides “route information, area, and route maps,”
`
`which may beused “in conjunction with [a] GPS receiver. .
`
`. to display
`
`directions, text and map formats,the user’s current position, heading , speed,
`
`elevation, and so forth.” Ex. 1005, Abs. “The IRMISalso enables the user
`to mark or record specific locations and/orlog actualtravel routes, using
`GPSposition information.” Jd. The logged information may be saved. Id.
`
`3. Analysis ofAnticipation Challenge of
`Claims 13, 14, and 17
`
`Petitioner asserts that Bouve disclosesall of the limitations of
`
`independent claim 13 and dependent claims 14 and 17. Pet. 10-19. With
`
`respect to claim 13, Petitioner points to aspects of Bouvethat disclose a
`
`system and methodfor providing route recommendations selected from a
`plurality of possible travel routes stored in a database as meeting the recited
`preamble and “storing data associated with one or moreroutes available to
`be traversed by an individual.” Pet. 10—12 (quoting Ex. 1004, Abs., 1:66—
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`2:21, 2:5-10, 2:51-54, 4:12-14, 4:65-67, 5:30—37; citing Ex. 1003 {ff 30,
`
`32).
`
`Petitioner contends Bouvedisclosesthe recited “receiving position
`
`data relating to a position of the individual” because Bouveexplainsthat a
`
`user may enter two geographic locations between which the user wishes to
`
`travel by using various input devices. Pet. 12—13 (quoting Ex. 1004, 2:10—
`
`13, 3:63-66; citing Ex. 1003 ¢ 34). Petitioner also points to Bouve’s
`
`disclosure that its system may beincorporated into an automobile, allowing
`
`the user to enter the data while in the automobile and select or change routes
`
`or obtain information about “Incidents or Conditions,” allowing the user to
`changea route oftravel while traveling. Id. at 13 (quoting Ex. 1004, 2:43-
`45, 5:6-9, 5:11-15). Thus, Petitioner asserts the first position is either the
`
`user’s current position or some future position from which the user will
`
`travel. Jd. at 12-13.
`
`Petitioner argues Bouve’s processorretrieves at least one available
`route between the positions entered by the user and presents the route(s) to
`the user on a display. Pet. 13-14. Petitioner maps that disclosure in Bouve
`
`to the limitation regarding processing the position data and recommending a
`route based on the position data. Id.
`Patent Ownerargues Petitioner has not demonstrated that Bouve
`
`discloses “receiving position data relating to a position ofthe individual”or
`
`“processing the position data with one or more processors and
`recommendingaroute for traversal by the individual from the stored route
`
`data based on the position data.” Prelim. Resp. 10-14 (emphases added).
`
`Patent Ownerasserts that Bouve merely discloses receiving two geographic
`
`locations and “[nJothing in Bouveties its routing features to a position of the
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`individual.” Jd. at 10-11. In particular, Patent Owner contendsthat nothing
`
`in Bouve requires that a user of the system be interested in or enter a
`geographic location wherethe usercurrently is or will be at any future time.
`Id. at 11-12. Patent Owneralso arguesthat Petitioner’s reliance on an
`
`ordinarily skilled artisan’s understanding does not establish anticipation by
`
`Bouve.
`
`/d, at 12. Patent Ownerfurther contends that Petitioner failed to
`
`demonstrate that Bouve discloses recommending a route based on the
`
`position data. Prelim. Resp. 13-15. Patent Owner’s contention depends on
`
`Patent Owner’s proposed construction of the recommending step, which
`
`requires that a route be recommendedbasedonly on a single position of the
`
`user.
`
`Bouve explains that the two positions entered are “[g]eographic
`
`locations representing the location at which overland travel will begin and‘
`
`end”andthat the ‘“‘vehicle system is particularly beneficial to a traveler
`
`desiring to select or change the route of travel during the course oftravel.”
`
`Ex. 1004, 3:63-66, 5:11-13 (emphasis added). Thus, we agree with
`
`Petitioner that Bouvesufficiently discloses “receiving position data relating
`toa position ofthe individual.” We reject Patent Owner’s assertion that an
`ordinarily skilled artisan’s understanding of Bouve’s disclosureis irrelevant
`
`to anticipation. See In re Preda, 401 F.2d 825, 826 (CCPA 1968) (even in
`
`the context of anticipation, “it is proper to take into accountnot only specific
`
`teachings of the reference but also the inferences which oneskilledin theart
`
`would reasonably be expected to draw therefrom”). Bouve explicitly states
`
`that the first geographic location may be a beginning pointoftravel and that
`
`the vehicular embodiment of the system mayallow the traveler to “change
`
`the route... during the courseoftravel.” Ex. 1004, 3:63-66, 5:12—13. We
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`determinethat an ordinarily skilled artisan would infer that the first
`
`geographic position could be a current or future position of the user. We
`
`also find persuasive Petitioner’s argument that Bouve discloses
`
`recommendinga route based on the position data, as recited in claim 13. As
`
`previously discussed, we do not adopt Patent Owner’s narrow construction
`
`of the recommending limitation. Therefore, we find Patent Owner’s
`
`argument regarding the recommendinglimitation unavailing.
`
`Claim 14 further recites “recommending a route for traversal by the
`
`individual based on the stored route data.” Petitioner points to disclosures in
`
`Bouve regarding a user selecting route types (e.g., highway, back roads,
`
`scenic route, etc.) and the processorretrieving “one or more routes
`
`corresponding to the input data route selection and identified start and end
`
`locations from the route selection data base stored in storage device 14 or
`
`200.” Pet. 15-16 (quoting Ex. 1004, 6:44-7:27). Petitioner contends that
`Bouve’s comparisonof a route type selected by a user to the route type
`
`stored in its database meets the additional limitation recited in claim 14. /d.
`
`at 16 (citing Ex. 1003 4§ 42, 43). Petitioner also asserts Bouve stores
`
`information relating to landmarks,facilities, incidents, and conditions with
`
`its route data, and that Bouve additionally meets the further limitation of
`
`claim 14 because Bouvediscloses recommending a route based on that
`
`landmark,facility, incident, and condition information. Jd. at 16-17
`
`(quoting Ex. 1004, 1:66-2:21, 6:62-7:27; citing Ex. 1003 | 44). We find
`
`Petitioner’s argument persuasive, and Patent Ownerdoesnotargue,in its
`
`Preliminary Response, that Petitioner has not met its burden with respect to
`
`the additional limitation recited in claim 14. Accordingly, we determine
`
`10
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`Petitioner has sufficiently demonstrated a reasonable likelihood of
`
`establishing that claim 14 is anticipated by Bouve.
`
`With respect to claim 17, which depends from claim 14 and further
`
`recites “the stored route data comprises a length of the route,” Petitioner
`
`points to disclosures in Bouve regarding computingor calculating the
`
`mileage indication along a route. Pet. 17-19 (quoting Ex. 1004, 1:28-35,
`
`4:20—34, 6:30-39, 8:18—22; citing Ex. 1003 § 46, 47). Patent Owner argues
`
`_ Petitioner merely points to disclosures in Bouvethat the route length is
`
`calculated or computed by the system and that Bouve doesnot disclose
`
`storing the route length in the databases wherePetitioner alleges the stored
`
`route data resides. Prelim. Resp. 15-18. We agree with Patent Owner, and
`
`find Petitioner’s argument insufficient to demonstrate that Bouve discloses
`
`“the stored route data comprises a length of the route.”
`
`After reviewing the Petition, the Preliminary Response, and the
`
`relevant evidence, we determine Petitioner has shownsufficiently that
`
`Bouvediscloses the limitations recited in claims 13 and 14, but not the
`
`additional limitation recited in claim 17. Accordingly, the information
`
`presented showsa reasonablelikelihood that Petitioner would prevail in
`
`establishing that claims 13 and 14 are anticipated by Bouve. The
`
`information presented, however, does not show a reasonablelikelihood that
`
`Petitioner would prevail in establishing that claim 17 is anticipated by
`
`Bouve.
`
`4. Analysis ofObviousness Challenge of
`Claims 13, 18, and 20
`
`Petitioner asserts that the combination of Bouve and DeLormeteaches
`
`all of the limitations of claims 13, 18, and 20. Pet. 19-26. With respectto
`
`Il
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`claim 13, Petitioner argues that, to the extent not disclosed explicitly by
`
`Bouve, the combination of Bouve and DeLormeteachesboth “receiving
`
`position data relating to a position of the individual” and the recommending
`
`limitation. Jd. at 19-20, 21-23. Specifically, Petitioner contends that Bouve
`
`discloses a user entering geographic locations using a “keyboard, voice
`
`recognition subsystem, or other input device,” and that DeLorme
`recommendsa route based onreceipt of a GPSsignal indicating the user’s
`current location. Jd. at 22-23. Petitioner further contends an ordinarily
`
`skilled artisan would have combinedthe teachings of Bouve and DeLorme,
`
`because both systemsare directed to recommendingroutes stored in a
`
`database. Jd. at 20. Petitioner asserts that incorporating DeLorme’s known
`
`technique of using GPSto provide a current position into Bouve’s known
`
`system would have yielded predictable results.
`
`/d. at 20-21. Thus,
`
`Petitioner argues that an ordinarily skilled artisan would have combined
`DeLorme’s teaching of using a GPS signal to obtain a current location with
`Bouve’s teaching of allowing for various methods or devices to input a
`starting location to result in a teaching meeting the recited “receiving
`position data relating to a position of the individual.” Jd. at 22—23.
`
`Petitioner contends DeLormeteachesthe additional limitations of
`
`claims 18 and 20, which each depend directly from claim 13 and
`
`respectively recite “the stored route data comprises data associated with one
`
`or more routes previously traversed by the individual” and “the position data
`
`is received with a global positioning satellite receiver.” Pet. 23-26.
`
`Specifically, Petitioner asserts DeLorme’s disclosure of “log[ging] actual
`
`travel routes, using GPS position information,” transferring those logs to a
`
`desktop or central system, and incorporating the stored information “for use
`
`12
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`in future travel planning” meets the additional limitation recited in claim 18.
`
`Id. at 23-24. Petitioner further asserts various reasonsan ordinarily skilled
`
`artisan would have combinedthe disclosed feature of DeLorme with Bouve,
`
`including that Bouve explicitly states that route retrieval may be based on
`
`which routes are mostoften retrieved. Jd. at 24-25. For similar reasons
`
`asserted with respect to claim 13, Petitioner argues the additional limitation
`
`that the position data is received with a GPSreceiver, recited in claim 20,
`
`would have been obviousin view of the combination of Bouve and
`
`DeLorme. /d. at 25-26.
`
`Atthis time, Patent Owner’s only substantive argument with respect
`
`to Petitioner’s challenges based on the combination of Bouve and DeLorme
`
`is that the combination requires two points to provide a route
`
`recommendation, whereas claim 13 provides a route recommendation based
`
`on a single location. Prelim. Resp. 18-20. Because we do not agree with
`
`Patent Owner’s proposed construction of claim 13 that the route
`
`recommendation must be based ona single position, we determine Petitioner
`
`has demonstrated sufficiently that Bouve and DeLormeteach the
`
`recommending limitation.
`
`After reviewing the Petition, the Preliminary Response, and the
`
`relevant evidence, we determine Petitioner has shownsufficiently that the
`
`combination of Bouve and DeLormeteachesthe limitations recited in claims
`
`13, 18, and 20. Wealso determinePetitioner has sufficiently articulated a
`
`reason with a rational underpinning that a person ofordinary skill in the art
`
`would have combined Bouve and DeLorme. Accordingly, the information
`
`presented showsa reasonable likelihood that Petitioner would prevailin
`
`13
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`establishing that claims 13, 18, and 20 are obvious in view of Bouve and
`
`DeLorme.
`
`C. Asserted Ground Based on Kim
`
`Petitioner contends claims 13-15, 17, and 20 are unpatentable under
`35 U.S.C. § 102(b) as anticipated by Kim. Pet. 26-37. Relying onthe
`testimony of Dr. Burke, Petitioner explains how Kim allegedly discloses the
`
`subject matter of claims 13-15, 17, and 20. /d. (citing Ex. 1013).
`
`1. Kim (Ex. 1006)
`
`Kim is directed to a vehicle navigation system and method for
`
`determining a recommendedroute oftravel that consumesthe least amount
`
`of fuel. Ex. 1006, Abs. The disclosed system determinesa current vehicle
`
`position using GPS satellites and routes betweenthe current position and
`
`/d. Based on altitude information associated with each
`desired destination.
`of various alternative routes, the system determines a preferred route that
`
`consumesthe least amountof fuel. Jd. at 2:25-35.
`
`2. Analysis ofAnticipation Challenge of
`
`Claims 13-15, 17, and 20
`
`Petitioner asserts that Kim disclosesall of the limitations of
`
`independentclaim 13 and dependent claims 14, 15, 17, and 20. Pet. 26-37.
`
`With respect to claim 13, Petitioner argues Kim discloses the recited
`
`preamble and“storing data associated with one or more routes available to
`be traversed by an individual” because Kim discloses “a memory forstoring
`
`data representative of local area routes andaltitude information for the
`
`routes, and a controller .
`
`.
`
`. for determining a current vehicle position and
`
`alternative routes from the current vehicle position to the destination”as
`
`well as selecting “a preferred path requiring the least amountoffuel
`
`14
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`consumption.” Pet. 27—29 (quoting Ex. 1006, 2:12—14, 4:5—-9, 4:38-42;
`
`citing Ex. 1003 J 67, 69). Petitioner further maps portions of Kim,
`
`including Kim’s disclosure of an antennato receive GPSsignals and a
`
`controller that uses those signals to determine “a current vehicle position and
`
`alternative routes from the current vehicle position to the destination”to the
`
`recited steps of “receiving position data relating to a position of the
`
`individual” and “processing the position data... and recommending a route
`
`... based on the position data.” Jd. at 29-31 (quoting Ex. 1006, 2:12—24);
`
`see id. (quoting Ex. 1006, Abs., 1:50—54, 3:22—32, 4:59; citing Ex. 1003
`
`{| 71-73). Petitioner concedes that Kim determinesthe position of a vehicle
`
`rather than an individual.
`
`/d. at 30. Nevertheless, Petitioner contends Kim
`
`discloses receiving data relating to a position of the individual because Kim
`
`explains that an individual uses the system while traveling in the vehicle. Jd.
`
`Petitioner points to the same disclosures in Kim already discussed
`
`with respect to claim 13 as meeting the additional limitations recited in
`
`dependent claims 14 and 17. Pet. 31-32, 34-36. Specifically, Petitioner
`
`argues Kim’s use ofstored altitude information for various optional routes
`and determination ofa route based ontheuseofthataltitude information
`
`meets the additional limitation recited in claim 14 of “recommendinga route
`
`for traversal by the individual based on the stored route data.” /d. at 31-32.
`
`Petitioner asserts Kim’s receipt of position information using GPSsignals
`meets the additionallimitationrecited in claim 20 that “the position data is
`received with a global positioning satellite receiver.” Jd. at 36-37. With
`
`respect to claim 15, Petitioner argues Kim’s use andstorage ofaltitude
`
`information associated with intervals along the stored alternative routes
`
`discloses the recited limitation that “the stored route data comprises
`
`15
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`elevation profile data.” /d. at 33-34. Regarding claim 17, Petitioner
`
`contends that Kim discloses using a “total altitude distance of travel”as part
`
`of its method for recommendinga route oftravel and that this disclosure
`
`meets the recited limitation that “the stored route data comprises a length of
`
`the route.” Jd. at 34-35. Alternatively, Petitioner argues Kim inherently
`
`discloses “the stored route data comprises a length of the route” because the
`
`length of the route would be necessary to calculate the total fuel needed to
`
`traverse a route. Jd. at 35-36.
`
`Atthis time, Patent Owner’s only substantive argument with respect
`
`to Petitioner’s challenge that claim 13 is anticipated by Kim is that Kim
`
`requires two points to provide a route recommendation, whereas claim 13
`
`provides a route recommendation based onasingle location. Prelim. Resp.
`18-20. For the same reasons discussed above, we do not agree with Patent
`Owner’s proposed construction of claim 13; accordingly, wedisagree with
`Patent Ownerthat Kim fails to disclose the recommendinglimitation.
`
`Regarding claim 17, we are not persuaded by Petitioner’s assertions.
`
`In particular, and taking Petitioner’s arguments in reverse order, Petitioner
`
`has not demonstrated sufficiently that “the stored route data comprises a
`
`length of the route” is inherently disclosed by Kim. Even if we assumethat
`
`Kim’s calculation of the fuel needed to traverse a route uses a formula that
`
`requires a length of the route, it is not inherent that the length ofthe routeis
`
`part of the stored route data. With respect to Kim’s explicit disclosure of a
`
`total altitude distance of travel, we are also unpersuadedbyPetitioner’s
`
`contentions. Petitioner does not propose, let alone support, an express
`construction for “a length of the route” that would include Kim’stotal
`altitude distance, which does not accountfor the actual distance driven by a
`
`16
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`vehicle. Also, the plain and ordinary meaning of“a length of the route”
`
`does not includetotalaltitude distance.
`
`After reviewing the Petition, the Preliminary Response, and the
`
`relevant evidence, we determine Petitioner has shown that Kim disclosesthe .
`
`limitations recited in claims 13—15 and 20, but not the additional limitation
`
`recited in claim 17. Accordingly, the information presented shows a
`
`reasonable likelihood that Petitioner would prevail in establishing that
`
`claims 13—15 and 20 are anticipated by Kim. The information presented,
`however, does not show a reasonable likelihood that Petitioner would prevail
`in establishing that claim 17 is anticipated by Kim.
`
`Ill. CONCLUSION
`
`For the foregoing reasons, we determine that the information
`
`presented establishes a reasonable likelihood that Petitioner would prevail in
`
`showing that claims 13-15, 18, and 20 are unpatentable. At this preliminary
`
`stage, the Board has not madea final determination with respect to the
`
`patentability of the challenged claims or any underlying factual and legal
`
`issues.
`
`IV. ORDER
`
`Accordingly,it is:
`
`ORDEREDthat, pursuant to 35 U.S.C. § 314(a), an inter partes
`
`review is instituted as to claims 13—15, 18, and 20 of the ’009 patent on the
`
`following grounds of unpatentability:
`
`A.
`
`Claims 13 and 14 under 35 U.S.C. § 102(b) as anticipated
`
`by Bouve;
`
`17
`
`
`
`IPR2015-01532
`Patent 8,652,009 B2
`
`B.
`
`Claims 13, 18, and 20 under 35 U.S.C. § 103(a) as
`
`obvious over Bouve and DeLorme; and
`
`C.
`
`Claims 13-15 and 20 under 35 U.S.C. § 102(b) as
`
`anticipated by Kim; and
`
`FURTHER ORDEREDthat pursuant to 35 U.S.C. § 314(c) and
`
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial, which
`
`commences onthe entry date of this decision.
`
`FOR PETITIONER:
`
`Brian E. Ferguson
`Anish R. Desai
`WEIL, GOTSHAL & MANGES LLP
`brian.ferguson@weil.com
`anish.desai@weil.com
`
`FOR PATENT OWNER:
`
`Mitchell G. Stockwell
`Wab P. Kadaba
`KILPATRICK TOWNSEND & STOCKTON LLP
`mstockwell@kilpatricktownsend.com
`wkadaba@kilpatricktownsend.com
`
`18
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
