Sucxess LLC

Patent Trials and Appeals Board

Jun 15, 2021

IPR2020-00268 (P.T.A.B. Jun. 15, 2021)

Trials@uspto.gov Paper 24
571-272-7822 Entered: June 15, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

DATASPEED INC.,
Petitioner,

v.

SUCXESS LLC,
Patent Owner.
____________

IPR2020-00268
Patent 10,454,707 B2
______________

Before TREVOR M. JEFFERSON, MINN CHUNG, and
NATHAN A. ENGELS, Administrative Patent Judges.

JEFFERSON, Administrative Patent Judge.

DECISION
Final Written Decision
Determining Some Challenged Claims Unpatentable
35 U.S.C. § 318(a)

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I. INTRODUCTION
In this inter partes review, Dataspeed Inc. (“Petitioner”) challenges
claims 1–20 (“the challenged claims”) of U.S. Patent No. 10,454,707 B2
(Ex. 1201, “the ’707 patent”) owned by Sucxess LLC (“Patent Owner”).
Paper 1 (“Pet.”). Patent Owner disclaimed claims 1–14 and 16–19 of the
’707 patent (Ex. 2002), leaving only claims 15 and 20 (“the remaining
challenged claims”) of the ’707 patent for our consideration.
We have jurisdiction under 35 U.S.C. § 6. This Final Written
Decision, issued pursuant to 35 U.S.C. § 318(a), addresses issues and
arguments raised during the trial in this inter partes review. For the
reasons discussed herein, we determine that Petitioner has shown by a
preponderance of the evidence that claim 15 of the ’707 patent is
unpatentable, but has not shown by a preponderance of the evidence that
claim 20 of the ’707 patent is unpatentable.
A. Procedural History
Petitioner filed a Petition challenging claims 1–20 of the ’707 patent
(Pet. 3, 18–65). We instituted trial on all grounds of unpatentability.
Paper 8 (“Dec.”), 27–28. Patent Owner filed a Response (Paper 14, “PO
Resp.”) addressing the remaining challenged claims. PO Resp. 2; Ex. 2002.
Petitioner filed a Reply (Paper 16, “Reply”), and Patent Owner filed a Sur-
reply (Paper 18, “Sur-reply”).
Petitioner submits the Declaration of Robert Leale (Ex. 1203) in
support of the Petition and the Second Declaration of Robert Leale
(Ex. 1213) in support of the Reply. Patent Owner supports its Response and
Sur-reply with the Declaration of Dr. Mahdi Shahbakhti (Ex. 2004).
Petitioner also submits the Deposition Transcript of Mahdi Shahbakhti,
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Ph.D. (Ex. 1212), and Patent Owner submits the Deposition Transcript of
Robert Leale (Ex. 2005) and the Second Deposition Transcript of Robert
Leale (Ex. 2009).
An oral hearing for this inter partes review was held on February 11,
2021, and a copy of the hearing transcript has been entered into the record.
Paper 23 (“Tr.”).
B. Instituted Grounds
We instituted inter partes review of the remaining challenged claims
on the following grounds asserted by Petitioner under 35 U.S.C. §§ 102 and
1031 (Dec. 7; PO Resp. 2–3):
Challenged
Claims
35
U.S.C. §
Reference(s)/Basis
20 102 Walker2
20 103 Walker
20 102 Smart Roadster3
20 103 Smart Roadster

1 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
(2011) (“AIA”), amended 35 U.S.C. §§ 102 and 103. Because the
’707 patent has an effective filing date prior to the effective date of the
applicable AIA amendments, we refer to the pre-AIA versions of §§ 102 and
103.
2 U.S. Patent No. 6,647,328 B2, filed Dec. 18, 2000; issued Nov. 11, 2003.
(Ex. 1204, “Walker”).
3 Joachim Schröder, et al, Smart Roadster Project: Setting up Drive-by-Wire
or How to Remote-Control your Car in Intelligent Autonomous Systems 9 -
IAS-9 (Tamio Arai, et al eds., Feb. 2006) (Ex. 1205, “Smart Roadster”).
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Challenged
Claims
35
U.S.C. §
Reference(s)/Basis
15, 20 103 Dietz4, SAE5, Bosch6, Negley7
20 103 Dietz, SAE, Negley, Bosch, Smart Roadster
15 103 Walker, one or more of Dietz, SAE, Negley,
Bosch

C. Real Party-in-Interest
Petitioner states that it, Dataspeed Inc., is the sole real party-in-
interest. Pet. 2.
D. Related Proceedings
Patent Owner states that two patents, namely, US 10,027,505 and US
10,454,707, are the subject of five district court cases involving Patent
Owner and various third parties, namely, Sucxess LLC v. AutoX
Technologies, Inc., Case No. 1:19-cv-02121 (D. Del.); Sucxess LLC v.
Phantom Auto, Inc., Case No. 1:19-cv-02122 (D. Del.); Sucxess LLC v.
Pony.ai, Inc., Case No. 1:19-cv-02123 (D. Del.); Sucxess LLC v. SF Motors,
Inc., Case No. 1:19-cv-02124 (D. Del.); and Sucxess LLC v. WeRide Corp.,
Case No. 1:19-cv-02130 (D. Del.). Pet. 2, Paper 5, 1.

4 Audiotechnik Dietz, Installation/connection manual for multimedia
interface 1280, March 16, 2005, http:/www.dietz.biz. (Ex. 1005, “Dietz”).
5 Craig Szydlowski, A Gateway for CAN Specification 2.0 Non-Passive
Devices, SAE Technical Paper Series, 930005, Society of Automotive
Engineers, Inc. 1993, pages 29–37. (Ex. 1009, “SAE”).
6 Robert Bosch, CAN Specification Version 2.0, Bosch, Sept. 1991.
(Ex. 1010, “Bosch”).
7 Bruce Negley, Getting Control Through CAN, The Journal of Applied
Sensing Technology, Oct. 2000, vol. 17, no. 10, pages 16–33. (Ex. 1006,
“Negley”).
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E. The ’707 Patent (Ex. 1201)
Titled “Method, Apparatus and System for Retrofitting a Vehicle”
(Ex. 1201, code [54]), the ’707 patent states that a vehicle could be
retrofitted to add, for example, an emergency call apparatus. Ex. 1201,
2:46–47. The retrofit apparatus is used to transmit a message on the vehicle
data bus. Id. at 2:52–55. The ’707 patent states that a retrofit apparatus may
be added to the vehicle with two data buses, with the first bus used to
communicate with the original vehicle equipment and the second bus used to
communicate with the rest of the vehicle. Id. at 3:32–36. With respect to
this communication, the ’707 patent states that the retrofit apparatus can be
configured to mimic command messages to enable the original vehicle
equipment to perform specified functions not originally enabled. Id. at
9:28–9:50.
In one embodiment of the ’707 patent, the retrofit apparatus is an
emergency call apparatus 214 that sends a message to a first apparatus, i.e.,
telecommunication apparatus 200 as seen in Figure 4, reproduced below.

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Figure 4 illustrates vehicle communication system 400 having
telecommunication apparatus 200 in communication with vehicle data bus
212 using an indirect connection through emergency call apparatus 214.
Ex. 1201, 7:59–63. Emergency call apparatus 214 mimics the dial command
message by using “the same message identifier segment that has been
assigned to navigation system 218 when transmitting its telephone dial
command message.” Id. at 9:39–41. “By sharing the same message
identifier segment a telephone dial command message originating from
emergency call apparatus 214 and a telephone dial command message
originating from navigation system 218 become indistinguishable for the
telecommunication apparatus 200.” Id. at 9:42–9:47. “Telecommunication
apparatus 200 hence responds properly to a telephone dial command
message originating from emergency call apparatus 214 even though it may
not have been designed for this purpose.” Id. at 9:46–50.
Messages to telecommunication apparatus 200 are communicated
through first and second data buses, as depicted in Figure 7, reproduced
below.

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Figure 7 is a block diagram that depicts emergency call apparatus 710.
Ex. 1201, 8:36–37. In Figure 7, control processor 500 communicates with
telecommunication apparatus 200 through vehicle data bus interface 504 and
electric terminal 600. Id. at 8:37–40. Control processor 500 also
communicates with other electronic modules connected to vehicle data bus
212 through second vehicle data bus interface 700 and electric terminal 602.
Id. at 8:40–47. “Control processor 500 retransmits any messages it receives
from vehicle data bus interface 504 through vehicle data bus interface 700
and any messages it receives from vehicle data bus interface 700 through
vehicle data bus interface 504, thereby functionally connecting
telecommunication apparatus 200 with vehicle data bus 212.” Id. at 8:50–
56.
F. Illustrative Claims
Challenged dependent claim 15 depends from claims 6 and 13, and
challenged dependent claim 20 depends from claims 6, 18, and 19. Claims
6, 13, 15, 18, 19, and 20 are reproduced below with added identification of
claim elements in brackets.
6. [pre] A vehicle, comprising:
[a] a factory-installed first apparatus configured to
generate an electrical signal;
[b] a factory-installed second apparatus configured to
receive the electrical signal; and
[c] a retrofit apparatus electrically connected to the
factory-installed second apparatus,
[d] wherein the retrofit apparatus generates a mimicked
electrical signal independently of the electrical signal generated
by the factory-installed first apparatus, and
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[e] wherein the factory-installed second apparatus receives
the mimicked electrical signal.
13. The vehicle as in claim 6, wherein a first electrical
interface between the factory-installed first apparatus and the
retrofit apparatus and a second electrical interface between the
retrofit apparatus and the factory-installed second apparatus are
identical.
15. The vehicle as in claim 13, wherein the first electrical
interface is a CAN vehicle data bus.
18. The vehicle as in claim 6, wherein the retrofit
apparatus includes an electronically controlled switch to
selectively separate a direct electrical connection between the
factory-installed first apparatus and the factory-installed second
apparatus.
19. The vehicle as in claim 18, wherein the electronically
controlled switch is a relay.
20. The vehicle as in claim 19, wherein the relay is
selectively controlled in response to a presence of an electrical
failure.
Ex. 1201, 11:24–36, 12:15–19, 12:22–23, 12:30–39.
II. ANALYSIS
A. Level of Ordinary Skill in the Art
Our Decision instituting inter partes review included a preliminary
determination that a person of ordinary skill in the art (“POSITA”) would
have had a bachelor’s degree in engineering with relevant coursework or
post-secondary education (Bachelor’s or associate degree) and four years of
work experience in the design, operation, and functioning of CAN systems
or systems using similar communications protocols. Dec. 8; see Pet. 9
(citing Ex. 1203 ¶ 46). Petitioner did not contest the level of ordinary skill,
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and Patent Owner “adopted the Board’s guidance” (PO Resp. 9–10).
Accordingly, we apply the same level articulated in the Decision.
B. Claim Construction
Because the Petition was filed after November 13, 2018, we construe
claims of the challenged patent using the same claim construction standard
used to construe claims in a civil action under 35 U.S.C. § 282(b), including
construing the claims in accordance with the ordinary and customary
meaning as understood by one of ordinary skill in the art reading the claims
in light of the intrinsic evidence. 37 C.F.R. § 42.100(b) (2019); see Phillips
v. AWH Corp., 415 F.3d 1303, 1312–14 (Fed. Cir. 2005).
Petitioner does not seek construction of any claim term. Pet. 5–6.
Patent Owner asserts that construction is necessary for the term
“electronically controlled switch,” as recited in claim 18 and incorporated
into challenged claim 20. PO Resp. 6–9. Patent Owner argues that “the
‘electronically controlled switch’ of claim 18 [refers] to ‘a switch that is
caused to open and close by an electronic circuit’ . . . [and] a switch that is
operated by a human or controlled by a mechanical device would not be
considered an ‘electronically controlled switch.’” PO Resp. 9 (citing
Ex. 2004 ¶ 23).
Patent Owner provides annotated Figures 4 and 6 of the ’707 patent
showing the electronically controlled switch. PO Resp. 6–7.
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Patent Owner annotates Figures 4 and 6 combined to show the
electromechanical relay 606 with coil 704. PO Resp. 7; Ex. 1201, 8:12–13.
Patent Owner argues that the ’707 patent teaches that because “‘[c]ontrol
processor 500 electronically controls switch 606,’ a POSITA would
understand the ‘electronically controlled switch’ of claim 18 to refer to ‘a
switch that is caused to open and close by an electronic circuit,’” limiting the
switch to being electronically controlled by the control processor. PO Resp.
9; see Ex. 1201, 8:12–28; Ex. 2004 ¶¶ 21–23.
Petitioner notes that Patent Owner disclaimed claim 19, which
introduces the limitation that an electronically controlled switch is a relay,
and that claim 20 adds no terms of patentable weight regarding control of the
relay introduced in claim 19. Reply 1–2. Patent Owner’s arguments
introduce an unnamed controller into claim 20, which recites that “the relay
is selectively controlled in response to a presence of an electrical failure” but
does not require implementing a particular type of control. Id. Indeed,
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Petitioner argues that claim 19 is a functional recitation of the nature of the
relay, that is suggested by claim 18 to change based on an electronic control
signal. Id. at 12–13. As such, Petitioner avers that claim 20, which depends
from claim 19, does not introduce a controller.
In this case, claims 18 and 19 recite that the electronically controlled
switch is a relay that responds to electronic control. Ex. 1201, 12:30–39.
We disagree with Patent Owner’s proposed construction limiting the method
of controlling the electronically controlled switch, as claims 15 and 20 do
not expressly require a control processor or otherwise limit the source of the
electronic control. On the full record, Patent Owner has not demonstrated
that the example of controlling the switch in the specification limits the type
of control applied in claim 20. PO Resp. 6–9. We determine it is
unnecessary to interpret that the relay is an “electronically controlled
switch” that is selectively controlled as recited in claim 20, and we apply the
term’s plain and ordinary meaning. See Nidec Motor Corp. v. Zhongshan
Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (explaining
the need to construe only terms that are in controversy and only to the extent
necessary to resolve the controversy) (citations omitted).
C. Asserted References
1. Walker (Ex. 1204)
Walker is entitled “Electrically Controlled Automated Devices to
Control Equipment and Machinery with Remote Control and Accountability
Worldwide.” Ex. 1204, code [54]. Walker describes trickster circuits
inserted between OEM sensors and OEM control modules that “are intended
to interrupt and interface with . . . OEM control and processor products to
augment normal operating data streams and provide specific electrical
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signals as [an] automated and/or remote control PFN [Primary Focal Node]
response to initiate a desired OEM function without changing the OEM’s
software and/or system in general.” Ex. 1204, 100:21–26. Figure 24A of
Walker, depicted below, shows a trickster circuit. Id.

Figure 24A depicts a trickster circuit where relay 1010 and variable resistor
1011 allow the circuit “to send an adjusted but specific voltage level to
simulate an analog OEMS senders signal” to the OEM Input for Sensor
Control Module. Ex. 1204, 101:15–18. The “OEM SI terminal is the OEM
sensor signal coming into . . . the relay and on to the OEM control module
in the normal state” when the signal is not sent by variable resistor 1011. Id.
at 101:58–60.
2. Smart Roadster (Ex. 1205)
Smart Roadster, entitled “Smart Roadster Project: Setting up Drive-
by-Wire or How to Remote-Control your Car,” describes interfacing with
existing vehicle control systems, sensors, and components to control to
provide drive-by-wire capability for a vehicle. Ex. 1205, Abstract, 383, 385.
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Smart Roadster teaches a control circuit to interface the steering control and
the CAN bus to force steering movements and switch between the regular
sensor and the CAN bus used for control. Ex. 1205, 387–388.
3. Buehler (Ex. 1211)
Buehler discloses a device and method for remote operation of a first
vehicle from a second vehicle. Ex. 1211, code [57]. For the throttle-by-wire
system, Buehler discloses that a gas pedal is connected to a transducer that
may be a potentiometer. Ex. 1211 ¶ 46.
4. Dietz (Ex. 1005)
Dietz discloses an installation manual for a multimedia interface that
processes data from the CAN-protocol of a vehicle. Ex. 1005, 2. Dietz
describes a device called “Multimedia Interface 1280” that is added to a
vehicle that allows playback of video through the factory-installed vehicle
navigation screen. Ex. 1005, 2–3.
5. Negley (Ex. 1006)
Negley discloses that a Controller Area Network (“CAN”) is a
protocol that “creates a communications path that links all the nodes
connected to the bus and enables them to talk to one another.” Ex. 1006, 18.
Negley discloses the CAN protocol uses a message-based data format to
transfer information from one location to another. Id. at 20. Among other
things, Negley describes that all messages have an identifier field and that
the node uses the identifier to determine whether to accept and act upon an
incoming message. Id. at 21.
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6. SAE (Ex. 1009)
SAE discloses that the CAN protocol “offers a comprehensive
solution to managing communication between multiple CPUs,” using
message identifiers. Ex. 1009, 29.
7. Bosch (Ex. 1010)
Bosch discloses that CAN is a serial communications protocol that
supports distributed real-time control with a high level of security.
Ex. 1010, 4. Bosch explains that information on a bus is sent in fixed format
messages and that the content of a message uses an identifier, so that all
nodes in a network are able to decide whether the data is to be acted upon by
them. Ex. 1010, 6.
D. Anticipation and Obviousness Based on Walker
Petitioner argues that Walker discloses the limitations of claims 1–14
and 16–20. Pet. 13–40; Ex. 1203 ¶¶ 85–171. Specifically, Petitioner argues
that Walker discloses the limitations of independent claims 1 and 6, by
disclosing retrofitting vehicles with trickster circuits between OEM sensors
and control modules. Pet. 17–23, 26–29; Ex. 1204, 100:21–26; Ex. 1203
¶ 87. Petitioner maps the limitations of claims 1 and 6 to the disclosure in
Walker and provides evidence supporting the retrofit device generating
mimicked signals received by the OEM equipment. Pet. 17–23; Ex. 1204,
Figs. 24A, 24B, 100:14–102:24, 101:16–23; Ex. 1203 ¶¶ 105–111.
With respect to independent claim 6, Petitioner provides argument and
evidence mapping the claim limitations to the trickster circuit in Walker.
Pet. 27–30; Ex. 1204, 24:54–64, 100:15–102:34, 101:16–23, Figs. 24A,
24B; Ex. 1203 ¶¶ 132–141. Petitioner provides an annotated version of
Walker’s Figure 24A, shown below, to illustrate its teachings. Pet. 39.
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Petitioner’s annotated Figure 24A shows Relay 1010 an electronically
controlled switch between the OEM Sensor and OEM control Module.
Pet. 38–39.
Petitioner argues that Walker discloses or renders obvious claims 18
and 19, because “[r]elay 1010 in Walker’s trickster circuits is an
electronically controlled switch that selectively separates a direct electrical
connection between the OEM sensor (1st apparatus) and OEM control
module (2nd apparatus).” Pet. 38 (citing Ex. 1204, 101:32–37; Ex. 1203
¶¶ 167–169); see also Pet. 14–15; Ex. 1203 ¶ 88–89 (describing signal
passed through relay 1010). For claim 20, Petitioner argues that when the
battery is disconnected or discharged from the IN VIN voltage of
Figure 24A, the relay electrically connects the OEM sensor and the OEM
control module.
We agree with Patent Owner’s argument that the selective control
limitation of claim 20 is not met in the case where a vehicle battery is
disconnected or discharged because no voltage in signal necessary to operate
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the relay is provided during such an electrical failure. PO Resp. 12–13.
Petitioner does not address Patent Owner’s contentions. See, generally,
Reply. We credit Patent Owner’s argument and evidence that without IN
VIN of Figure 24A supplying power to the relay, the relay cannot selectively
separate the apparatuses as required in claim 18 and subsequently claim 20.
PO Resp. 14; Ex. 2004 ¶ 28.
Based on the full record, Petitioner has not shown by a preponderance
of the evidence that Walker anticipates or renders obvious claim 20.
E. Anticipation and Obviousness Based on Smart Roadster
Petitioner argues Smart Roadster discloses each element of claims 1–
3, 5–10, 12, 13, and 16–20, or a person of ordinary skill in the art would
have found claims 1–3, 5–10, 12, 13, and 16–20 to have been obvious over
Smart Roadster. Pet. 40–64; Ex. 1203 ¶¶ 172–253. Petitioner provides
detailed argument and testimony regarding the power steering control circuit
of Smart Roadster describing the connection and operation of the circuit to
the OEM control module and sensor of the vehicle. Pet. 40–43; Ex. 1203
¶¶ 172–178; Ex. 1205, 387–388. Petitioner maps the functions and
operation of the Smart Roadster circuit to the limitations of claims 1–3, 5–
10, 12, 13, and 16–20. Pet. 40–64; Ex. 1203 ¶¶ 172–253. Petitioner
provides citations to the record and testimony to support that a person of
ordinary skill in the art would understand the control circuit (Ex. 1205, 387–
388, Fig. 4) to disclose the functions or operations to generate and mimic
sensor values to remotely control a vehicle via the CAN bus system of the
vehicle. Pet. 48–49; Ex. 1203 ¶¶ 191–198.
Patent Owner has disclaimed claims 1–14 and 16–19. Ex. 2002.
With respect to the remaining challenged claim 20, which recites that “the
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relay is selectively controlled in response to a presence of an electrical
failure,” Petitioner’s argument in full asserts that
Smart Roadster discloses or renders obvious claim 20. In the
remote control circuits of Smart Roadster, relays K1 and K2
controlled the position of switches K1 and K2 in response to the
presence of an electrical failure. In particular, if the
NOTAUS_SENSE line falls to a low level, which a POSITA
would understand to be an electrical failure or which a POSITA
would find obvious as occurring in the case of the vehicle
battery being disconnected or discharged, or in the case of
some other cause or fault resulting in a failure to supply the
NOTAUS_SENSE signal, the relays are set to electrically
connect the OEM sensors to the OEM control devices to allow
the human driver to take control of the vehicle instead of the
remote control. See Smart Roadster [Ex. 1205], Figure 4, p.
387-388 (“The state of the relay depends on … the level of
NOTAUS_SENSE line”); Smart Roadster [Ex. 1205], p. 388
(“Connection … [is] only established if level of
NOTAUS_SENSE is high.”); Leale [Ex. 1203], ¶249.
Pet. 62–63 (emphasis added) (alterations added).
Patent Owner contends that the relays in Smart Roadster are a
hardwired connection to a physical button, and that the “NOTAUS_SENSE
line falling to a low level as an electrical failure is not supported by Smart
Roadster.” PO Resp. 15–16. Furthermore, Patent Owner argues that Mr.
Leale agreed that the low level in the NOTAUS_SENSE line that Petitioner
cites occurs when the emergency button is pushed. PO Resp. 16; Ex. 2005,
29:12–20, 32:22–24. Patent Owner argues that Petitioner failed to recognize
that when the “NOTAUS_SENSE is low [in Smart Roadster] the second
apparatus receives the output of the first apparatus, not the mimicked
electrical signal” as required in claim element 6[e]. PO Resp. 17 (citing
Ex. 2004 ¶ 32; Pet. 63). Finally, Patent Owner argues that in the event of
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electrical failure by the vehicle battery disconnected or discharged, the
Smart Roadster control circuit would lose power and no mimicked electrical
signal would be available. PO Resp. 17–18. Accordingly, Petitioner does
not demonstrate sufficiently that Smart Roadster teaches the claim 20
limitation of “the relay [being] selectively controlled in response to a
presence of an electrical failure.” Id. at 16–18.
Petitioner asserts that Smart Roadster discloses an emergency circuit
that controls the state of relays as argued for claims 18 and 19. Pet. 61–62
(citing Ex. 1205, 387–388 (“The state of the relays depends on the
emergency circuit”); Ex. 1203 ¶¶ 246–247). Thus, Petitioner argues that
“‘in response to the presence of an electrical failure,’ such as when the
NOTAUS_SENSE is not maintained at a high level, for example due to
battery discharge, the relays will be opened, as opposed to when
NOTAUS_SENSE is maintained at a high level where the relays are caused
to be closed,” and thus meets the limitations of claim 20. Reply 13;
Ex. 1213 ¶¶ 27–29.
On the full record we are not persuaded by Petitioner’s argument that
the Petition persuasively demonstrates the limitations of claim 20. Petitioner
argues that when the NOTAUS_SENSE line falls to a low level, where the
relays are controlled by the emergency circuit of Smart Roadster, an
ordinarily skilled artisan would recognize the NOTAUS_SENSE line falling
to a low level to be an electrical failure as recited in claim 20. Reply 13.
Petitioner’s support for this argument depends on testimony and argument
that the emergency circuit controls the state of the relays and switches (Pet.
63; Ex. 1205, 387–388), such that “if the NOTAUS_SENSE line falls to a
low level, [] a POSITA would understand [that] to be an electrical failure”
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(Pet. 62). In its Reply, Petitioner specifically asserts that this low level on
the NOTAUS_SENSE line occurs when any component in the safety chain
cuts the emergency circuit. Reply 13 (citing Ex. 1203 ¶¶ 175–178, 202–
203). This argument connecting the low level with a component triggering
the emergency circuit, however, is not supported adequately or persuasively
by the Petition. See Pet. 61–63; Ex. 1203 ¶¶ 244–249. Petitioner’s Reply
cites testimony that addresses the connection of Smart Roadster’s control
circuit to the OEM equipment and the Smart Roadster teaching the
limitations of claim 3 (concerning mimicked electrical signal being initiated
in response to the external input). Ex. 1203 ¶¶ 175–178, 202–203. This
testimony fails to sufficiently demonstrate that the electrical failure recited
in claim 20 is disclosed in Smart Roadster. See Pet. 62–63. In addition,
Petitioner fails to show adequately that a person of ordinary skill in the art
would have understood that the Smart Roadster control circuit teaches the
electrical failure limitation of claim 20 when there is a low level on the
NOTAUS_SENSE line. Id.
We also note that Petitioner’s Reply argument that Smart Roadster
discloses or teaches opening the relays when “any component in the safety
chain cuts the emergency circuit” (Reply 13) is not adequately presented in
the Petition. Reply 13; Ex. 1213 ¶¶ 27–29. Our rules require that the
Petition identify where claimed elements are found in the reference(s) and
must explain the relevance of those identified portions of the reference(s).
See, e.g., 37 C.F.R. § 42.104(b)(4) (“The petition must specify where each
element of the claim is found in the prior art patents or printed publications
relied upon.”); see also 37 C.F.R. § 42.104(b)(5) (the petition must identify
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“the relevance of the supporting evidence to the challenge raised, including
identifying specific portions of the evidence that support the challenge”).
Here, Petitioner’s argument in the Reply regarding the functions of
the emergency circuit, DSPs, and the circuits functions during electrical
failure (Reply 14–17; Ex. 1213 ¶¶ 20–40) do not merely provide
clarification of the argument presented in the Petition but, instead, address
the explanation that should have been included in the Petition, as required by
our rules. Petitioner’s arguments and evidence in the Reply are the type of
material that should have been included in the Petition in the first instance to
present a prima facie case of unpatentability, and, therefore, are improperly
introduced for the first time in the Petitioner Reply. See Patent Trial and
Appeal Board Consolidated Trial Practice Guide 73–75 (Nov. 2019)
(“Consolidated Trial Practice Guide”), available at https://www.uspto.gov/
TrialPracticeGuideConsolidated (discussing the appropriate scope for a
reply); id. at 73 (“Petitioner may not submit new evidence or argument in
reply that it could have presented earlier, e.g. to make out a prima facie case
of unpatentability.”). It was Petitioner’s burden to demonstrate sufficiently
in the Petition that the cited prior art renders the challenged claims
unpatentable, including showing that the Petition’s contentions are supported
by evidence. See 35 U.S.C. § 314(a); see also Harmonic Inc. v. Avid Tech.,
Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016) (“In an IPR, the petitioner has the
burden from the onset to show with particularity why the patent it challenges
is unpatentable.” (emphases added)) (citing 35 U.S.C. § 312(a)(3));
Intelligent Bio-Systems, 821 F.3d at 1369 (requiring “the initial petition
identify ‘with particularity’ the ‘evidence that supports the grounds for the
challenge to each claim.’” (emphases added)); 37 C.F.R. §§ 42.104(b)(4) &
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(5). Petitioner’s arguments in its Reply are not supported sufficiently by the
Petition. Accordingly, we accord Petitioner’s new argument in the Reply no
weight.
Referring back to only the arguments introduced in the Petition,
Petitioner’s conclusory argument regarding the Smart Roadster circuit and
performance when the battery is being disconnected or discharged fails to
show that Smart Roadster anticipates the limitations of claim 20. Pet. 62–
63. Furthermore, Petitioner fails to provide sufficient argument and
evidence in the Petition to establish that Smart Roadster teaches that when
the NOTAUS_SENSE is not maintained at a high level due to battery
discharge or disconnection an electrical failure as recited in claim 20 has
occurred. Pet. 62–63. Petitioner’s obviousness arguments rely on the same
NOTAUS_SENSE signal arguments addressed above and fail to adequately
address how a battery disconnection or discharge performs with respect to
the Smart Roadster emergency circuit that Petitioner cites in its Reply. Id.;
Reply 17.
Based on the foregoing, we find that Petitioner has not shown by a
preponderance of the evidence that Smart Roadster anticipates or renders
obvious claim 20.
F. Obviousness based on Dietz
Petitioner argues that Dietz, Negley, SAE, and Bosch teach the
limitations of claims 1–3, 5–10, 12, 13, 15–20, providing argument and
evidence mapping the limitations of the challenged claims to Dietz. Pet. 64–
77; Ex. 1203 ¶¶ 214–327; Ex. 1005, 3, 4–6. Petitioner also argues that
Dietz, Negley, SAE, Bosch, and Smart Roadster teach the limitations of
claims 6 and 18–20. Pet. 78–79; Ex. 1203 ¶¶ 333–335. Petitioner’s
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argument and evidence rely on a figure in the Dietz installation manual
showing a retrofit module inserted into the CAN bus between a navigation
OEM apparatus and the vehicle. Pet. 66 (showing annotated figure);
Ex. 1005, 3. Petitioner argues that a skilled artisan would have understood
the operation of the OEM CAN bus and the signaling necessary to add the
1280 module in Dietz to the vehicle. Pet. 64–66; Ex. 1005, 3, 4–6; Ex. 1203
¶¶ 254–258.
In our Decision on Institution, we determined Petitioner provided
insufficient evidence and argument to support the conclusions regarding
Dietz’s functions relied on to support Petitioner’s argument regarding
claim 6, from which claims 15 and 20 depend. Dec. 17–18. Petitioner does
not address the grounds based on Dietz. See generally Reply. Petitioner’s
analysis relies on page 3 of the Dietz 1280 installation manual and testimony
from Mr. Leale to support the specific messaging and signal limitations of
independent claims 1 and 6. Pet. 68–70, 72. We find that Petitioner has not
provided sufficient evidence and argument to support the conclusions
regarding Dietz’s functions. See Pet. 65–66; Ex. 1005, 3; Ex. 1203 ¶¶ 256–
258, 290–294. We do not find that the Dietz installation manual figures and
text adequately support Petitioner’s conclusory argument regarding the
motion of the vehicle or CAN bus messaging. Pet. 68; Ex. 1203 ¶¶ 271–
272. On the full record, we agree with Patent Owner that Petitioner’s
argument and evidence are insufficient to show that Dietz, Negley, SAE, and
Bosch, or Dietz, Negley, SAE, Bosch, and Smart Roadster teach the
limitations of claims 15 and 20, both of which depend from claim 6. PO
Resp. 18–23; Ex. 2004 ¶¶ 35–42.
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Based on the full record, we determine that Petitioner has not shown
by a preponderance of the evidence that (1) Dietz, Negley, SAE, and Bosch
render claims 15 and 20 obvious, or that (2) Dietz, Negley, SAE, Bosch, and
Smart Roadster render obvious claim 20.
G. Obviousness of Claim 15 based on Walker and One or More of
Dietz, SAE, Negley, and Bosch
Petitioner argues Walker in combination with one or more of Dietz,
SAE, Negley, and Bosch teaches the limitations of claims 6, 13, and 15.
Pet. 79–80; see id. at 27–30, 35–36; Ex. 1203 ¶¶ 132–141. Petitioner
contends that Walker discloses the limitations of claim 6 for the reasons
Petitioner explained with respect to alleged anticipation of claim 6 by
Walker. See Pet. 79; see also Part II.D supra. Specifically, Petitioner
asserts that Figure 24A of Walker teaches a retrofit apparatus connected
between the factory-installed first and second apparatuses (the OEM Sensor
and OEM Control Module), where the retrofit apparatus mimics an electrical
signal generated by the first apparatus that is received by the second
apparatus. Pet. 26–30; Ex. 1203 ¶¶ 130–141. Patent Owner does not
specifically dispute Petitioner’s contention that Walker discloses the
limitations of claim 6. See PO Resp. 10–14. Based on the complete record
and for the reasons explained by Petitioner, we find that Petitioner has
demonstrated sufficiently that Walker teaches the limitations of claim 6.
Claim 13 depends from claim 6 and further recites “wherein a first
electrical interface between the factory-installed first apparatus and the
retrofit apparatus and a second electrical interface between the retrofit
apparatus and the factory-installed second apparatus are identical.”
Ex. 1201, 12:15–19. Petitioner contends that Walker discloses the
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additionally recited limitation of claim 13 because an ordinarily skilled
artisan would understand that the input and output of the retrofit device
installed between existing OEM devices would require the same input and
output signals to use the same wiring and connections. See Pet. 35–36;
Ex. 1203 ¶¶ 158–159. Patent Owner does not specifically dispute
Petitioner’s contention that Walker discloses the additionally recited
limitation of claim 13. See PO Resp. 10–14; 25–28. Based on the complete
record and for the reasons explained by Petitioner, we find that Petitioner
has demonstrated sufficiently that Walker teaches the additionally recited
limitation of claim 13.
Claim 15 depends from claim 13 and further adds the requirement that
the first electrical interface of claim 13 is a CAN vehicle data bus. Ex. 1201,
12:22–23. Petitioner argues that a person of ordinary skill in the art would
have understood that OEM sensors provide signals to over a CAN bus to
OEM control modules. Pet. 80 (citing Ex. 1006, 7; Ex. 1009, 3 (“The
Controller Area Network (CAN) protocol . . . offers a comprehensive
solution to managing communication between multiple CPUs.”); Ex. 1010,
6–16, 38–51, 58). Petitioner argues that “[i]t would have been obvious for a
POSITA to use a CAN bus to provide signals from an OEM sensor to an
OEM control module in Walker,” which teaches installing a trickster circuit
on the CAN bus and CAN bus control module node. Pet. 80; Ex. 1204,
119:41–46, 117:38–46; Ex. 1203 ¶ 340.
With respect to the motivation to combine the references, we
determined in our Decision on Institution that Petitioner has not provided
sufficient evidence and argument to support the motivation to combine Dietz
and Walker. Dec. 18–19. Petitioner does not contest our preliminary
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determination. Reply 3. With respect to the remaining references, however,
Petitioner argues Walker in combination with one or more of SAE, Negley,
and Bosch teaches the limitations of claims 6, 13, and 15. Pet. 79–80; Reply
3–9. Specifically, Petitioner contends that an ordinarily skilled artisan
would have understood to use a CAN bus to provide signals from an OEM
sensor to an OEM controller in Walker because
Such an arrangement is explained in SAE, Negley, and Bosch.
See SAE, 3 (“The Controller Area Network (CAN) protocol . . .
offers a comprehensive solution to managing communication
between multiple CPUs.”); Negley, 7 (identifying the structure
of a “typical smart sensor node” as including a
Microcontroller); id. (“Every other node captures the message
and examines it to see if it is required to take some action.”);
Bosch, 6–16, 38-51, 58; id., 40 (disclosing “all nodes in the
network are able to decide by Message Filtering whether the
data is to be acted upon by them or not.”).
Pet. 80. Petitioner argues “[i]t would have been obvious for a POSITA to
use a CAN bus to provide signals from an OEM sensor to an OEM control
module in Walker” as “a CAN bus would have numerous advantages over
the use of a continuous wire, including that the CAN bus could allow
multiple sensors to share the same continuous wire.” Id.
Patent Owner argues that Walker teaches two different circuits for the
OEM sensor and control module that are not known to use a CAN bus. PO
Resp. 27. In addition, Patent Owner contends that to modify Walker to work
on a CAN bus would require wholesale replacement of the Walker circuit
with something else. Id. at 27–28 (citing Ex. 2004 ¶ 51). Patent Owner
further contends that Walker’s simple circuit with hardwired signals is one
direction and cannot be applied to a CAN bus that requires bidirectional
communication capability. Id.
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Patent Owner’s arguments improperly rely on physically
incorporating the circuits of Walker in the CAN bus field described by SAE,
Negley, and Bosch. PO Resp. 26–28. Bodily incorporation, however, is not
the standard for obviousness analysis. See In re Mouttet, 686 F.3d 1322,
1332–33 (Fed. Cir. 2012); see also MCM Portfolio LLC v. Hewlett-Packard
Co., 812 F.3d 1284, 1294 (Fed. Cir. 2015) (“[t]he test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference” (citation omitted)), cert. denied,
137 S. Ct. 292 (2016).
In the present case, Patent Owner contends that Walker’s specific
circuit would not properly output to the CAN interface of an OEM control
module. PO Resp. 26; Ex. 2004 ¶ 50. We disagree and are persuaded by
Petitioner’s argument and evidence that it would have been within the scope
of knowledge of a person of ordinary skill in the art to apply a CAN bus to
the first electrical interface as required in claim 15. Pet. 79–81; Reply 3–9.
Petitioner argues that in view of Patent Owner’s disclaimer of dependent
claim 13, which recites that the first and second electrical interfaces are
identical, Patent Owner concedes that identical interfaces are obvious and
are not limited to specific interfaces or signals. Reply 3–4; see id. at 4 n.2
(citing Ex. 1212, 22:12–23:13).
With respect to claim 15, Petitioner contends that “consistent with the
teachings of Walker . . . it would have been obvious to install a trickster
CAN bus node in series with the OEM sensor CAN bus node and OEM
control module CAN bus node as a retrofit.” Pet. 80 (citing Ex. 1204,
119:41–46; see also Ex. 1204, 117:38–46); Ex. 1203 ¶ 340. Thus, Petitioner
asserts that a trickster CAN bus node is utilized in the combination and not
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the precise circuit of Walker. Id. We credit Petitioner’s evidence that
Walker in combination with one or more of SAE, Negley, and Bosch teaches
the interface of its control system with existing OEM controllers or
computers of varied types, which a skilled artisan would have understood to
include CAN bus nodes. See Ex. 1203 ¶ 340; Ex. 1204, 117:38–46, 119:41–
46; see also Ex. 1006, 20–21; Ex. 1009, 3, Ex. 1010, 6–16, 38–51, 58.
We are not persuaded by Patent Owner’s contention that the broad
idea of trickster circuits disclosed in Walker does not establish obviousness
because it does not teach a particular embodiment of a CAN bus trickster
circuit. Sur-reply 3–4 (citing Knauf Insulation, Inc. v. Rockwool, Int’l A/S,
788 Fed. App’x 728, 733 (Fed. Cir. 2019)). We are also not persuaded by
Patent Owner’s arguments that Petitioner’s declarant, Mr. Leale confirmed
the unpredictability of the modifications to the CAN bus circuit. Sur-reply
5–6 (citing Ex. 2009, 20:18–22:2). We credit Petitioner’s expert’s testimony
and Petitioner’s citation to Walker as establishing that Walker teaches
integrating the circuit and controller using signals sent from processors with
various known interfaces. See Ex. 1203 ¶ 340; Ex. 1204, 117:38–46,
119:41–46; Reply 8–9; Ex. 1213 ¶¶ 12–14.
Patent Owner asserts Petitioner offers no analysis of how Walker’s
circuit teaches the elements of claims 6 and 13, from which claim 15
depends, working with a CAN bus. Sur-reply 5. Patent Owner argues that
Mr. Leale confirms that applying Walker’s circuit to a CAN bus is an
uncertain outcome. Id. at 5–6; Ex. 2009, 20:18–22:2. Patent Owner also
argues that Mr. Leale confirms that a person of ordinary skill in the art
would not have been aware of using Walker with a CAN bus at the time of
application for the Walker invention. Sur-reply 6–7; Ex. 2009, 29:1–15.
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Patent Owner argues that a person of ordinary skill in the art would have not
been motivated to combine the teachings of Walker with one or more of
SAE, Negley, and Bosch, because Petitioner’s argument uses impermissible
hindsight requiring wholesale modification of Walker. Sur-reply 9–10
(citing Uber Techs., Inc. v. X One, Inc., 957 F.3d 1334 (Fed. Cir. 2020)).
We disagree with Patent Owner. With respect to CAN buses not
being available at the time of Walker’s application, we credit Mr. Leale’s
testimony that CAN buses were widely implemented after Walker’s time of
invention not that CAN bus. Ex. 1213 ¶ 13; Ex. 2009, 26:2–16, 27:18–
28:15. We further determine that Petitioner provides persuasive evidence
that Walker teaches installation of trickster circuits in various settings using
alternative controllers. See Pet. 80; Ex. 1204, 117:38–46, 119:41–46.
Where a technique has been used to improve one device, an ordinarily
skilled artisan would recognize its use to improve similar devices in a same
way. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). In this case,
we agree with Petitioner’s evidence that Walker teaches implementation
beyond the specific circuit embodiments, and describes integrated circuits
and software using processors to adapt its disclosure to different vehicle
settings. Reply 8; Pet. 80; Ex. 1203 ¶ 340; Ex. 1213 ¶ 10; Ex. 1204, 117:38–
55, 102:23–28.
We are also not persuaded by Patent Owner’s contention that an
ordinarily skilled artisan would not have been motivated extend Walker to a
CAN bus because it would replace Walker’s inexpensive circuit with a
costly CAN gateway. Sur-reply 7–8; Ex. 2009, 24:3–5, 15–18. It is well-
settled law that a prior art reference’s disclosure is not limited to the
exemplary embodiments it discloses in the specification. See, e.g., In re
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Applied Materials, Inc., 692 F.3d 1289, 1298 (Fed. Cir. 2012) (“A reference
must be considered for everything that it teaches, not simply the described
invention or a preferred embodiment.”). Here, Walker teaches applications
of circuit could involve controllers, processors, firmware and software to
realize its functions. Ex. 1203 ¶ 340; Ex. 1204, 117:38–55, 102:23–28. We
do not find that increased expense of CAN gateway discourages the
combination of Walker with the CAN bus references. As discussed above,
we find that Petitioner has articulated reasoning supported by evidentiary
bases as to why the ordinarily skilled artisan would have combined the
references in the manner proposed by Petitioner. Furthermore, a person of
ordinary skill in the art would have had engineering knowledge and
experience in the design, operation, and functioning of CAN systems. See
Part II.A supra. In that regard, Petitioner’s combination does not rely on
knowledge gleaned from the ’707 patent’s disclosure. See In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) (“Any judgment on
obviousness is in a sense necessarily a reconstruction based upon hindsight
reasoning, but so long as it takes into account only knowledge which was
within the level of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant’s disclosure,
such a reconstruction is proper.”). We find Petitioner’s evidence that
application of Walker to a CAN bus is within the scope of knowledge of a
person of ordinary skill in the art. Ex. 1203 ¶ 380; Ex. 1213 ¶¶ 10–18.
On the record before us, Petitioner provides persuasive evidence that
Walker in combination with one or more of SAE, Negley, and Bosch teach
the application of Walker’s trickster architecture to a CAN bus via a CAN
gateway. Pet. 80–81; see Ex. 1203 ¶ 340; Ex. 1213 ¶¶ 11–13; Ex. 1204,
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117:38–46, 119:41–46; see also Ex. 1006, 20–21; Ex. 1009, 3; Ex. 1010, 6–
16, 38–51, 58; Ex. 1204, 102:23–28 (stating that retrofit functions “will be
performed by integrated circuits and preprogrammed as limited software
and/or firmware signals sent from . . . mini controller computers and/or
processors”); Ex. 1212, 27:19–28:4 (Patent Owner declarant agreeing that a
CAN bus gateway can be used to connect in series between nodes on
separate CAN buses).
Based on the foregoing and the complete record, we find that
Petitioner has shown sufficiently that Walker in combination with one or
more of SAE, Negley, and Bosch teaches the limitations of claim 15. In
addition, based on the foregoing and upon consideration of the complete
record, we determine that Petitioner articulates sufficient reasons, supported
by rational underpinning, for the combination of teachings from Walker and
one or more of SAE, Negley, and Bosch that it proposes. Accordingly,
based on the complete record, we find that Petitioner has demonstrated by a
preponderance of the evidence that claim 15 would have been obvious over
the combination of Walker and one or more of SAE, Negley, and Bosch.
We do not find that Petitioner has demonstrated by a preponderance of the
evidence that claim 15 would have been obvious in view of Walker in
combination with Dietz.
III. CONCLUSION
For the reasons given, based on the arguments and evidence of record,
Petitioner has met its burden to prove by a preponderance of the evidence
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that claim 15 is unpatentable under 35 U.S.C. § 103(a) as obvious over
Walker in combination with one or more of Negley, SAE, and Bosch.8
Petitioner has not established by a preponderance of the evidence that
(1) claim 20 is unpatentable under 35 U.S.C. § 103(a) or 35 U.S.C. § 102
over Walker; (2) claim 20 is unpatentable under 35 U.S.C. § 102 or 35
U.S.C. § 103 over Smart Roadster; (3) claims 15 and 20 are unpatentable
under 35 U.S.C. § 103(a) as obvious over Dietz, SAE, Bosch, and Negley; or
(4) claim 20 is unpatentable under 35 U.S.C. § 103(a) as obvious over Dietz,
SAE, Bosch, Negley, and Smart Roadster.

8 Should Patent Owner wish to pursue amendment of claim 15 in a reissue or
reexamination proceeding subsequent to the issuance of this Decision, we
draw Patent Owner’s attention to the April 2019 Notice Regarding Options
for Amendments by Patent Owner Through Reissue or Reexamination
During a Pending AIA Trial Proceeding. See 84 Fed. Reg. 16,654 (Apr. 22,
2019). If Patent Owner chooses to file a reissue application or a request for
reexamination of the challenged patent, we remind Patent Owner of its
continuing obligation to notify the Board of any such related matters in
updated mandatory notices. See 37 C.F.R. § 42.8(a)(3), (b)(2).
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The table below summarizes our conclusions with respect to the
remaining challenged claims:
Claim(s) 35 U.S.C. §
Reference(s)/
Basis
Claims
Shown
Unpatentable
Claims
Not Shown
Unpatentable
20 102 Walker 20
20 103(a) Walker 20
20 102 Smart Roadster 20
20 103(a) Smart Roadster 20
15, 20 103(a) Dietz, SAE,
Bosch, Negley
15, 20
20 103(a) Dietz, SAE,
Bosch, Negley,
Smart Roadster
20
15 103(a) Walker, Dietz 15
15 103(a) Walker, one or
more of SAE,
Negley, Bosch
15
Overall
Outcome
15 20

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IV. ORDER
Accordingly, it is:
ORDERED that claim 15 of the ’707 patent is determined to be
unpatentable;
FURTHER ORDERED that claim 20 of the ’707 patent has not been
shown to be unpatentable; and
FURTHER ORDERED that, because this is a final written decision,
parties to this proceeding seeking judicial review of our Decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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PETITIONER:

Peter W. Gowdey
Wayne M. Helge
James T. Wilson
DAVIDSON BERQUIST JACKSON & GOWDEY, LLP
pete@dbjg.com
whelge@dbjg.com
jwilson@dbjg.com

PATENT OWNER:

Bernd Axel Nix
Smartpat PLC
axel.nix@smartpat.net

Maxwell Goss
MAXWELL GOSS, PLLC
max@maxwellgoss.com