Toyota Motor Corporationv.LeRoy G. Hagenbuch

Patent Trial and Appeal Board

Mar 3, 2015

13864090 (P.T.A.B. Mar. 3, 2015)

Trials@uspto.gov Paper 36
Tel: 571-272-7822 Entered: March 3, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
TOYOTA MOTOR CORP.,
Petitioner,
v.
LEROY G. HAGENBUCH,
Patent Owner.
_______________

Case IPR2014-00124
Patent 8,532,867 B1
_______________

Before JAMESON LEE, MICHAEL W. KIM, and
JEREMY M. PLENZLER, Administrative Patent Judges.

LEE, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

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I. INTRODUCTION
A. Background
Toyota Motor Corp. (“Toyota”) filed a Petition to institute an inter
partes review of claims 15–26 of U.S. Patent No. 8,532,867 B1 (Ex. 1101,
“the ’867 patent”). Paper 2 (“Pet.”). Leroy G. Hagenbuch (“Hagenbuch”),
as Patent Owner, filed a Preliminary Response. Paper 11 (“Prelim. Resp.”).
We instituted trial as to claims 15–24 but not claims 25 and 26. Paper 14
(“Dec. Inst.”).
During trial, Hagenbuch filed a Patent Owner Response (Paper 18,
“PO Resp.”), which was accompanied by an expert declaration from
Michael Nranian (Ex. 2067). Toyota filed a Reply to the Patent Owner
Response. Paper 26 (“Reply”). A consolidated oral argument for this
proceeding and Case IPR2014-00123 was held on January 12, 2015. A
transcript of the hearing has been entered into the record. Paper 35 (“Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). This final written
decision is issued pursuant to 35 U.S.C. § 318(a).
We determine that Toyota has shown by a preponderance of the
evidence that claims 15–20, 23, and 24 of the ’867 patent are unpatentable.
We also determine that Toyota has not shown, by a preponderance of the
evidence, that claims 21 and 22 of the ’867 patent are unpatentable.
B. Related Proceedings
The ’867 patent has been asserted by Hagenbuch against a subsidiary
of Toyota in Hagenbuch v. Toyota Motor Sales, U.S.A., Inc., No.1:13-cv-
6713 (N.D. Ill., filed Sept. 18, 2013). Pet. 1; Prelim. Resp. 1. The ’867
patent also is involved in inter partes review IPR2014-00123, the Final
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Written Decision of which holds unpatentable claims 1–7 and 10–12 of the
’867 patent and is issued concurrently herewith.
C. The ’867 Patent
The ’867 patent generally relates to identifying anomalies in an
operation of a vehicle, and more particularly, to collecting and analyzing
data derived during vehicle operation, so as to diagnose a cause of
operational anomalies. Ex. 1101, 1:25–29. At the time of the invention, it
was known to include sensors for tracking the vital signs of the vehicle (i.e.,
indicators of the vehicle’s health). Id. at 1:33–34. Such sensors may include
an oil pressure gauge, a water temperature gauge, an electrical system
charging/discharging gauge, a brake system condition sensor, and a
transmission shift indicator. Id. at 1:34–39. It was also known, at the time
of invention, to employ sensors to monitor vehicle parameters related to a
task being performed by the vehicle, so as to establish how effectively the
vehicle is performing. Id. at 1:45–47. Task-related parameters could
include load carried by the vehicle, grade of the road, loads hauled per hour,
and tons hauled per hour. Id. at 1:54–57. In general, task-related parameters
provide indicia of work done by the vehicle, where work is proportional to a
weight of the vehicle multiplied by a distance it is carried. Id. at 1:57–60.
Production performance of the vehicle generally is evaluated in an amount
of work done in a unit of time—e.g., miles per hour, tons per hour, and the
like. Id. at 1:60–63.
The disclosed invention of the ’867 patent integrates monitoring and
recording of vehicle production data with vehicle vital sign data. Id. at
1:64–2:9. As depicted in Figure 2B, reproduced below, processor 41
receives both work-related data 67 and vital sign data 73.
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As shown in Figure 2B, processor 41 chronologically stores work-
related data into memory 83 such that, once full, new data begin overwriting
the oldest data (i.e., memory 83 is buffered). Id. at figs. 5A, 5B, 12:44–
13:44. If processor 41 senses a vital sign that is one of the ten most extreme
readings, it stores that extreme reading along with corresponding work-
related data into memory 87, such that it will not be overwritten unless a
more extreme reading is encountered (i.e., memory 87 is non-buffered). Id.
at 13:30–56. Likewise, vital signs that reach a critical value are stored in
memory 89 with their corresponding work-related data. Id. at 13:12-29. By
utilizing vital signs to identify when a vehicle is in a poor state of health, one
may be able to determine a cause of the poor health by examining work-
related data pertaining to a recent use of the vehicle. Id. 2:22–3:29.
In the event of a crash, processor 41 copies data from memory 83 into
memory 85, along with vehicle deceleration measurements, for preservation.
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Id. at 11:66–12:3. In addition, data continue to be acquired and stored into
memories 83 and 85. Id. at 3:22–27, 25:9–38. Additionally, in the event of
a crash, a distress signal automatically is sent out to alert other personnel
that aid may be required. Id. at 7:39–49.
D. Illustrative Claims
Among all challenged claims 15–24, claim 15 is the only independent
claim and is reproduced below:
15. An apparatus for recording operation of a vehicle
and facilitating emergency response in the event of a
collision of the vehicle, the apparatus comprising:
sensors for monitoring production-related parameters
of the vehicle, where the parameters include
ground speed of the vehicle, a position of a
throttle for an engine of the vehicle, an on/off
status of a braking system of the vehicle, and a
status of a seat belt;
one or more sensors for monitoring vital signs of the
vehicle, where the vital signs include information
indicative of a change in the velocity of the
vehicle;
a processor in communication with one or more of the
sensors for monitoring vital signs of the vehicle
and detecting whether the vehicle has been
involved in a collision based on information
obtained by monitoring one or more of the sign
parameters;
a first memory adapted to capture values of the
production-related parameters;
a second memory adapted to receive information from
the first memory and information indicative of a
change in the velocity of the vehicle;
the processor, in response to detection of the collision,
causing recording into the second memory values
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from the one or more sensors for monitoring vital
signs of the vehicle over a finite period of time
after detection of the collision and further causing
transfer of data from the first memory to the
second memory, the data comprising three or more
of the production-related parameters of the vehicle
captured in the first memory over a finite period of
time before detection of the collision; and
a transmitter for automatically sending a wireless
distress signal from the vehicle in response to
detecting the collision, the distress signal
indicating that the vehicle has been in a collision.
Ex. 1101, 26:60–27:25.
E. Prior Art Relied Upon
Toyota relies upon the following prior art references:

Aoyanagi Japanese. Pat. Pub. H03-085412 April 10, 2001
(Ex. 1102) (English Translation Ex. 1103)1

Vollmer Int. Pat. Pub. WO 90/03899 April 19, 1990
(Ex. 1104) (English Translation Ex. 1105)2

Steiner U.S. Patent No. 4,939,652 July 3, 1990
(Ex. 1106)

Fincham W. Fincham et al., “DRACO. A Transient Recorder for
Road Accidents,” Automotive Electronics, 1991, Eighth
International Conference on Automotive Electronics,
pp. 135–39, Oct. 28–31, 1991
(Exhibit 1108)

1 Unless otherwise noted, citations are to the certified English translation
that is Exhibit 1103.
2 Unless otherwise noted, citations are to the certified English translation
that is Exhibit 1105.
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F. The Instituted Grounds of Unpatentability

Claims Ground Reference(s)
15–20, 23, and 24 § 103 Aoyanagi, Vollmer, and Steiner
21 and 22 § 103 Aoyanagi, Vollmer, Steiner, and
Fincham

In support of the grounds identified above, Toyota presents a
Declaration of David McNamara. Ex. 1110.
II. ANALYSIS
For the challenged claims, Petitioner must prove unpatentability by a
preponderance of the evidence. 35 U.S.C. § 316(e).
A. Claim Construction
Claims of an unexpired patent are given their broadest reasonable
interpretation in an inter partes review. 37 C.F.R. § 42.100(b). However,
the ’867 patent is expired. Consequently, the Board’s review of the claims
of the ’867 patent is similar to that of a district court’s review. In re
Rambus, Inc., 694 F.3d 42, 46 (Fed. Cir. 2012). In this context, claim terms
are given their ordinary and customary meanings, as understood by a person
of ordinary skill in the art, at the time of the invention, having taken into
consideration the language of the claims, the specification, and the
prosecution history of record, because the expired claims are not subject to
amendment. Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en
banc). “In some cases, the ordinary meaning of claim language as
understood by a person of skill in the art may be readily apparent even to lay
judges, and claim construction in such cases involves little more than the
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application of the widely accepted meaning of commonly understood
words.” Id. at 1314.
In the Decision on Institution, we provided the following
constructions for these claim terms:
“monitoring” is construed as “watching or keeping track of, or
checking” (Dec. Inst. 9);
“capturing” and “recording” are each construed as “to store data into
memory” (Dec. Inst. 13);
“second memory” is construed as “any set of memory addresses
separate from a first set of memory addresses” (Dec. Inst. 14).
We also determined that neither “information indicating whether the
vehicle has been involved in more than one collision” nor “information . . .
includes the number of collisions” requires the multiple collisions to occur
during one crash or accident. Dec. Inst. 16.
After institution of trial, neither party disputed the above-noted claim
construction. Upon review of the full record, we have no reason to deviate
from them, except for the construction of the term “second memory.” We
did not intend to suggest that a memory address is the same as a memory.
Accordingly, the construction of “second memory” is revised to: “any
memory space separate from a first memory space.”
B. Obviousness of Claims 15–20, 23, and 24 over Aoyanagi, Vollmer,
and Steiner
We have reviewed the Petition, the Patent Owner Response, and
Petitioner’s Reply, as well as the relevant evidence discussed in those
papers. We are persuaded, by a preponderance of the evidence, that claims

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15–20, 23, and 24 would have been obvious over Aoyanagi, Vollmer, and
Steiner under 35 U.S.C. § 103.
A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). Obviousness is a legal determination based on underlying factual
inquiries including (1) the scope and content of the prior art, (2) the
differences between the prior art and the claimed invention, (3) the level of
ordinary skill in the art, and (4) secondary considerations of nonobviousness,
if any. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). The level of
ordinary skill in the art need not always be expressly defined. It can be
reflected by the prior art of record. See Okajima v. Bourdeau,
261 F.3d 1350, 1355 (Fed. Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579
(Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91 (CCPA 1978).
Aoyanagi
Aoyanagi describes an apparatus for recording vehicle running
conditions, especially during and following an accident. Ex. 1103, 70. In
that regard, Aoyanagi states: “[t]he recording apparatus uses sensors to
record data of the running conditions of the vehicle from these sensors, and
the recorded data are used to judge the circumstances of the accident.” Id. at
71. Aoyanagi specifically identifies 15 items of recordable data, and refers

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Figure 1 is a schematic plan view denoting a recording apparatus
attached to a vehicle; Figure 2 illustrates a rotation angle sensor; and Figure
3 illustrates a hydraulic pressure sensor. Ex. 1103, 73. In the particular
embodiment represented by Figures 1–3, the data being monitored include
brake pedal position, accelerator pedal position, engine speed, vehicle speed,
steering angle, among others. The brake pedal position is calculated from
the output of the hydraulic pressure sensor. Id. at 71.
When it is determined that a crash or accident has occurred, such as
when a shock occurs and the vehicle speed becomes zero in a short time, that
constitutes a condition for stopping data input. Id. at 72. But, Aoyanagi
describes that the system can be made such that when an accident occurs,
recording can continue to take place for a specific period of time after
receiving shocks and the like. Id. at 72.
Vollmer
Vollmer discloses a device, onboard a vehicle, that can automatically
make a call in the event of an emergency, which call includes various
information about the vehicle and the emergency situation. Ex. 1105, 6:10–
25. The device includes control unit 3 and sensing elements that are
constantly ready for operation. Id. at 6:10–12. Vollmer describes that data
transmitted in the emergency call includes: reason for the emergency, car
license number/owner, type of vehicle, color of the vehicle, position of the
vehicle, hazard group identification, number of passengers, seat positions,
speed and deceleration measurements, whether vehicle is speeding, whether
vehicle is driving against traffic, and whether the emergency call was
manually triggered. Id. at 6:22–25. Vollmer describes that an emergency

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call can be triggered by a manually operated key, independent of the
automatically functioning sensing elements. Id. at 8:6–7.
Steiner
Steiner is titled “Trip Recorder.” Ex. 1106, at [54]. It discloses an
onboard system for monitoring, recording, and displaying vehicle operating
parameters, in which detailed data are stored in the onboard system for
subsequent processing by an off-line computer. Ex. 1106, at [57].
Examples of vehicle operating parameters monitored and recorded are the
average speed of the vehicle and the distance travelled by the vehicle, both
in fixed time intervals. Id. at 4:21–31.
In a preferred embodiment, Steiner discloses using a 60 byte area in
memory, as a circular buffer, to record, at one second intervals, the average
speed at which the vehicle is moving. Ex. 1106, 8:1–6. The average speed
at each interval is stored at consecutive byte locations. Id. at 8:6–7. The
buffer is accessed in a circular manner, such that it contains data on the
vehicle’s average speed only for each of the preceding 60 seconds. Id. at
8:17–21. For subsequent analysis of the recorded data, Steiner describes:
Two switches 632, are provided to initiate transferring of the
contents of the buffer to an area of data memory where it will
be retained for subsequent analysis. One switch is an impact
triggered switch that will activate if the vehicle is involved in
an accident, and the other switch is a push button switch that
may be manually activated by the driver of the vehicle. A
separate area in data memory 506, is allocated for retaining the
contents of the circular buffer, for each switch.

The impact triggered switch may comprise a self-
triggering device such as an accelerometer switch, or a level
detector switch. Either the self-triggering device or the manual
switch can be activated for any of a set of predetermined
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conditions, for example, emergency conditions or simply the
desire of the driver to retain the information.

Activation of either switch causes data from the circular
buffer to be stored in the appropriate area of memory, after a
delay of 15 seconds. The retained data therefore represents
vehicle activity for a time period starting 45 seconds prior to
activation of either switch, and ending 15 seconds after such
activation.
Ex. 1106, 8:21–43.
1. Discussion of Obviousness
Toyota explains how each element of claim 1 is satisfied by
Aoyanagi, except for (1) “a transmitter for automatically sending a wireless
distress signal from the vehicle in response to detecting the collision, the
distress signal indicating that the vehicle has been in a collision”; (2) “a
second memory adapted to receive information from the first memory and
information indicative of a change in the velocity of the vehicle”; and (3) “in
response to detecting of the collision, causing recording into the second
memory values from the one or more sensors for monitoring vital signs of
the vehicle over a finite period of time after detection of the collision and
further causing transfer of data from the first memory to the second memory,
the data comprising three or more of the production-related parameters of
the vehicle captured in the first memory over a finite period of time before
detection of the collision.” Pet. 9–16, 20–26.
Toyota contends that it would have been obvious to one with ordinary
skill in the art, in light of Vollmer’s disclosure of sending an automatic
distress signal in case of an accident, also to cause Aoyanagi’s system to
send a wireless distress signal in response to detecting a collision. Pet. 15–
16. Toyota also contends that in light of Steiner’s disclosure of transferring
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stored data, in case of an accident, from the circular buffer to a separate area
of the memory where they will be retained for subsequent analysis, to
modify the system of Aoyanagi so as to transfer the stored data from a first
memory to a second memory, in case of an accident. Pet. 12–16. That,
according to Toyota, accounts for both claim limitations identified above
and relating to the workings of the second memory. Toyota also explains
that the first memory used in Aoyanagi is a “64-kilobyte C-MOS SRAM,”
which is a volatile memory. Pet. 12.
Hagenbuch disagrees with both of Toyota’s contentions noted above.
PO Resp. 33–43. In addition, Hagenbuch asserts that Toyota has not shown
that one with ordinary skill in the art would have selected from all potential
vehicle parameters to monitor, as disclosed in Aoyanagi, the precise
combination of parameters required to be monitored by the challenged
claims. PO Resp. 12–32. According to Hagenbuch, Petitioner relied on
inappropriate hindsight and “cherry pick[ed]” the parameters to arrive at the
combination of vehicle parameters required by the claims to be monitored
and recorded. PO Resp. 15, 30. Hagenbuch also asserts that, contrary to the
contention of Toyota, Aoyanagi does not disclose the monitoring and
capturing of brake on/off status as is required by all claims. PO Resp. 44–
47. Hagenbuch presents, as secondary consideration of nonobviousness,
what it regards as evidence of commercial success. PO Resp. 50–56.
For reasons discussed below, we are persuaded by each of Toyota’s
contentions and not persuaded by any of Hagenbuch’s arguments. We have
considered the entirety of the arguments and evidence before us, including
the contentions of Toyota that are not disputed by Hagenbuch. Toyota has
established, by a preponderance of the evidence, that claims 15–20, 23, and
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24 would have been obvious over Aoyanagi, Vollmer, and Steiner under
35 U.S.C. § 103.
a) The monitored and recorded vehicle parameters
As described above, Aoyanagi specifically identifies 15 vehicle
parameters for monitoring and recording. Ex. 1103, 71. Although Aoyanagi
states that these parameters “are not always necessary but just illustrative,”
(id. at 71) that statement does not take away from or diminish Aoyanagi’s
specific disclosure of the 15 vehicle parameters to monitor and record. What
Aoyanagi illustrated, as an embodiment, is the monitoring and recording of
all 15 vehicle parameters. That Aoyanagi also indicates that all 15
parameters “are not always necessary” merely adds to and expands its
disclosure of an embodiment that monitors and records all 15 vehicle
parameters.
Hagenbuch’s argument is misplaced, that Toyota has not shown that
one with ordinary skill in the art would have selected the particular
combination of parameters to monitor and record, as required by claim 15,
i.e., the ground speed of the vehicle, engine throttle position of the vehicle,
braking system on/off status, seat belt status, and information indicative of a
change in the velocity of the vehicle, such as acceleration and deceleration.
The argument is misplaced, because claim 15 does not limit or restrict the
monitoring and recording to only those parameters expressly recited in the
claim or prohibit the monitoring and recording of other vehicle parameters.
The claim feature relating to what vehicle parameters to monitor and record
reads on prior art that monitors and records the identified parameters,
whether or not additional vehicle parameters also are monitored and
recorded. On the basis of its embodiment that monitors and records all 15
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vehicle parameters, Aoyanagi is such prior art. No picking or choosing is
involved or necessary.
In the alternative, even assuming that Aoyanagi does not disclose that
all 15 vehicle parameters should be monitored and recorded, Aoyanagi
discloses, as discussed above, another preferred embodiment, the one
illustrated in its Figures 1–3. That embodiment monitors and records all of
the vehicle parameters required by claim 15 and claims depending on claim
15 to be monitored and recorded, except for the parameter of seat belt status.
In light of Aoyanagi’s specific identification of 15 vehicle parameters that
can be monitored and recorded, including seat belt status (Ex. 1103, 71),
Aoyanagi reasonably would have suggested to one with ordinary skill in the
art also to monitor seat belt status, in the embodiment of Figures 1–3. We
do not regard that as selective picking and choosing with inappropriate
hindsight in light of Hagenbuch’s own disclosure. Rather, the suggestion
stems directly from the teachings of Aoyanagi.
The argument of Hagenbuch alleging selective picking and choosing
and cherry-picking of parameters from Aoyanagi also is misdirected because
it is based on what combination would be the most practical from the
perspective of making economic sense, if implemented on vehicles that are
manufactured and sold in the market. For instance, Hagenbuch urges that a
skilled artisan would have had reason “to modify Aoyanagi to make it
simpler and reduce its memory requirements.” PO Resp. 15. In that regard,
Hagenbuch states:
Petitioner cherry picks those claim elements out of the
reference without the slightest explanation as to why the skilled
artisan would decide to monitor those particular parameters
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when otherwise modifying Aoyanagi to be simpler and have
reduced memory requirements.
PO Resp. 15 (emphasis added). Hagenbuch further notes:
Even in 2006—12 years after the priority date of the
invention—sophisticated companies such as General Motors,
Ford and Toyota deemed storing a mere 1,100 data points to be
excessive. In that regard, the NHTSA proposed rules that
required recording 3 events and 18 data elements. . . .
Automobile manufacturers, including Toyota, vehemently
protested those extensive data collection requirements. See,
e.g., Ex. 2002, at p. 51006, 51011, 51019. Tellingly, as a result
of the protestations by Toyota, the NHTSA modified its rules to
require recording even fewer data elements, over a shorter
period of time, and only for two crash events—rules requiring
storing only 144 data points. Ex. 2003 at IV-5, Table IV-1.
PO Resp. 19. During oral argument, counsel for Hagenbuch acknowledged
that NHTSA rule making regarding what data to record is influenced by cost
considerations for memory requirements. Tr. 39:17.
According to Hagenbuch, relying on the testimony of Mr. Nranian, at
the time of invention of the ’867 patent, one with ordinary skill in the art
would not have implemented the teachings of Aoyanagi because recording
all of the disclosed data elements at a resolution of 10 times per second over
three minutes would have resulted in an undesirably large amount of data to
be recorded. PO Resp. 24. Hagenbuch asserts, based on the testimony of
Mr. Nranian, that the skilled artisan, aware of Aoyanagi and related data
recording art, would have had to exercise judgment and balance tradeoffs,
such as a tradeoff between “available memory and resolution.” Id. Those
arguments are not that Aoyanagi constitutes nonenabling prior art or that one
with ordinary skill in the art would not have known how to make or use the
disclosed system. Rather, it is that one with ordinary skill in the art, for
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various practical considerations, would not have actually implemented in a
real vehicle such as those for sale by car manufacturers. Actual
implementation of an embodiment described in the prior art from a practical
perspective is not the point. Commercial viability does not control the
obviousness determination. In that connection, we note the following
instruction from the Court of Appeals for the Federal Circuit:
[T]he fact that the two [prior art disclosures] would not be
combined by businessmen for economic reasons is not the same
as saying that it could not be done because skilled persons in
the art felt that there was some technological incompatibility
that prevented their combination. Only the latter fact is telling
on the issue of nonobviousness.
Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir.
1983).  The cost of providing sufficient memory in each unit to store all the
data Aoyanagi identifies for monitoring and recording does not nullify or
otherwise undermine Aoyanagi’s teaching to monitor and record such
vehicle parameters. Similarly, the risk of having more potential data loss
because more data is recorded does not nullify or undermine the teaching.
In any event, as we discussed above, Aoyanagi discloses an embodiment that
monitors and records far fewer than all 15 vehicle parameters, that still
includes all of the vehicle parameters recited in Hagenbuch’s claims, except
for seat belt status. Hagenbuch does not contend that the cost associated
with that embodiment, modified to include also recording the seat belt status,
would be practically prohibitive. Hagenbuch further does not contend that
one with ordinary skill in the art would not have known to decrease the data
resolution, i.e., increase the time interval between successive data points
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sampled, to lower the demand on memory, if the memory cost is deemed
excessive for a practical implementation. 
Hagenbuch argues that Aoyanagi does not recognize any distinction
between vehicle vital sign parameters and vehicle production-related
parameters. PO Resp. 27. That may be so, but it is inconsequential. The
prior art does not have to use the same “name” to refer to a class or group of
vehicle parameters. It is only necessary that limitations regarding
monitoring and recording of vehicle parameters are met, regardless of how
the parameters are classified by a group name. Aoyanagi discloses the
monitoring and recording of parameters that fit within the group names
identified in the claims for vehicle parameters. In that regard, we note that
counsel for Hagenbuch, when asked at oral argument whether vital sign
vehicle parameters and production-related vehicle parameters can overlap, or
are mutually exclusive, had no clear or satisfactory answer. Tr. 22:18–21.
b) the on/off status of a braking system
We disagree with Hagenbuch’s contention that Aoyanagi does not
disclose monitoring and recording the on/off status of a braking system of a
vehicle. Toyota accounts for that limitation by pointing to Aoyanagi’s
identification of “brake pedal position” (Ex. 1103, 71) as a parameter to be
monitored and recorded. Pet. 10–11, 22. Toyota relies on the following
testimony of David McNamara.
A person of ordinary skill in the art at the time of the
’867 patent’s priority date would have understood that when no
pressure is applied to the brake pedal, the hydraulic pressure
sensor would detect an amount of pressure that corresponds to
an “off” state of the braking system, i.e., when no braking
pressure is applied to the brake 30. On the other hand, when
pressure is applied to the brake pedal, the hydraulic pressure
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sensor 28 would detect an increased amount of pressure that
corresponds to an “on” state of the braking system.
Ex. 1110 ¶ 37. At page 22 of the Petition, Toyota specifically identifies
“brake pedal position” as the on/off status indicator. Aoyanagi explicitly
identifies “Brake Pedal Position” as a parameter to be monitored and
recorded. Ex. 1103, 71. Aoyanagi specifically states that the brake pedal
position is calculated from detecting the hydraulic pressure of a hydraulic
pressure cylinder brake by use of a hydraulic pressure sensor. Id.
Hagenbuch asserts that Aoyanagi’s disclosed brake pressure sensor is
incapable of reliably indicating brake on/off status. PO Resp. 45.
Specifically, Hagenbuch states:
For example, after the brake pedal has been pressed and
released, brake pressure does not simultaneously return to the
same pressure level existing before the brake pedal was pressed.
Ex. 2067 at ¶ 94. Additionally, hydraulic brake systems can
fail for any number of reasons, such as low brake fluid level,
pressure loss due to hose or hose assembly rupture, or loose or
broken fittings. Id. at ¶ 95. In that event, a collision may result
despite the operator’s application of pressure to the brake pedal,
however, the brake pressure sensor of Aoyanagi would not
indicate the important fact that the driver had attempted to
apply the brakes. Id. at ¶ 95. Thus, merely measuring brake
pressure will not inform the on/off status of the brake as
required by the claims because it will lead to false positives. Id.
at ¶¶ 94, 95.
PO Resp. 45–46.
Hagenbuch raises concerns about the reliability of using hydraulic
pressure sensor to detect brake pedal position, as is disclosed in Aoyanagi,
but falls short of asserting that Aoyanagi is beyond the skill of a person of
ordinary skill with respect to disclosing how to detect brake pedal position.
Also, Hagenbuch fails to acknowledge the fact that no system is absolutely
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free from breakdown. As far as “reliability” is concerned, we note that the
term is relative and subjective, and Hagenbuch has not articulated an
objective standard with which to evaluate the issue. On this record, it is
sufficient to note simply that Hagenbuch has not made an assertion that
Aoyanagi constitutes prior art beyond the skill of an ordinary artisan with
regard to detecting the brake pedal position of the vehicle, and that a prior
art reference need not disclose the best way to implement a disclosed
functionality. It cannot be reasonably disputed that Aoyanagi describes
monitoring and recording the brake pedal position of a vehicle. If the
described manner of detecting brake pedal position is not satisfactory, for
any reason, nothing precludes one with ordinary skill in the art from
employing other means or methods within his or her skill to detect brake
pedal position. The challenged claims do not require any particular method
of detecting the on/off status a vehicle braking system.
Hagenbuch further argues that detecting brake pressure and detecting
whether brake system is on/off are different and reflect different species of
the status of a braking system. PO Resp. 46. Supposedly, detecting brake
pressure allows for detection of the degree of braking, as opposed to just the
on/off status of the braking system. It is unclear how that distinction comes
to the assistance of Hagenbuch in the circumstances of this case. As we
discussed above, it cannot be reasonably disputed that Aoyanagi describes
monitoring and recording the brake pedal position of a vehicle. Because
on/off status is a binary indicator, the brake pedal position reveals the on/off
status of the braking system. Whatever is the detected brake pedal position,
it indicates that the brake system is on or off. There is no intermediate status
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between on and off. Whether the degree of braking also is revealed does not
matter.
c) Combining the Teachings of Aoyanagi and Vollmer
We have considered Toyota’s rationale for combining the teachings of
Vollmer with that of Aoyanagi, and are persuaded thereby, notwithstanding
the arguments of Hagenbuch. In light of the teachings of Aoyanagi and
Vollmer, one with ordinary skill would have known to incorporate in a data
monitoring and recording system such as that of Aoyanagi, which takes
certain action with data in case of a crash or accident, an additional step of
sending a wireless distress signal in response to detecting a collision,
notwithstanding Hagenbuch’s contrary arguments.
Hagenbuch notes that Aoyanagi and Vollmer have different functions
in that although the purpose of Aoyanagi is to store data to facilitate the
investigation of the cause of an accident, the purpose of Vollmer is to
automatically transmit a signal in the event of an accident. PO Resp. 40.
The argument is misplaced because there is no per se rule in an obviousness
analysis that two prior art references which have a different overall purpose
or objective cannot, by definition, have teachings which are combinable with
each other. It all depends on whether a rationale exists to support a proper
combination of the respective teachings.
For a proper rationale to combine teachings to exist, there also is no
per se rule that all of the functionalities of the two references must be the
same or comparable. Again, it all depends on whether there is a sufficient
rationale to support a proper combination of the respective teachings.
Consequently, Hagenbuch’s noting that Vollmer is not designed to preserve
data for collision diagnostics in a manner comparable to Aoyanagi is also
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misplaced. The focus should be, instead, on the reasonableness of a
rationale to combine the teachings.
In an obviousness analysis, it is not necessary to find precise teachings
in the prior art directed to the specific subject matter claimed because
inferences and creative steps that a person of ordinary skill in the art would
employ can be taken into account. KSR, 550 U.S. at 418. A basis to
combine teachings need not be stated expressly in any prior art reference.
In re Kahn, 441 F.3d 977, 987-88 (Fed. Cir. 2006). There need only be an
articulated reasoning with rational underpinnings to support a motivation to
combine teachings. Id. at 988.
Toyota’s stated rationale does have rational underpinnings and are
straightforwardly logical. Vollmer teaches that in case of a crash or
accident, sending a wireless distress signal to summon help decreases the
time before emergency services are notified, and that automatically sending
a distress signal avoids the difficulties a person may have, in case of a crash
or accident, in manually making a call. Pet. 13. That purpose and objective,
as a motivation to incorporate automatically sending a distress signal in
response to detection of a collision, is applicable to any onboard device that
detects a collision, such as Aoyanagi’s system, regardless of what other
functions are performed by the onboard device. In any event, the data
monitoring and recording function of Aoyanagi are not unlike those
performed by the system of Vollmer. As we have discussed above,
Vollmer’s distress signal includes monitored information such as the
vehicle’s position, the number of passengers in the vehicle, the seat
positions, speed and deceleration measurements, and whether the vehicle
was proceeding against traffic.
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d) Combining the Teachings of Aoyanagi and Steiner
We have considered Toyota’s rationale for combining the teachings of
Steiner with that of Aoyanagi, and are persuaded thereby, notwithstanding
the arguments of Hagenbuch. In light of the teachings of Aoyanagi and
Steiner, one with ordinary skill would have known to use, in a data
monitoring and recording system such as that disclosed in Aoyanagi, a dual
memory system for recording data, where the contents of a first overwritable
memory are transferred to a second memory in response to detection of a
collision.
As discussed above, like Aoyanagi, Steiner discloses a vehicle data
monitoring and recording system, which retains monitored vehicle data for
subsequent analysis after the occurrence of a collision. Both Aoyanagi and
Steiner use a first memory of a certain size, that is continuously overwritable
when full, to record vehicle data. Ex. 1103, 72; Ex. 1106, 8:1–9. To prevent
overwriting important data that are needed for analysis of an accident, both
Aoyanagi and Steiner disclose that in case of an accident, further recording
is stopped and the already recorded data is preserved based on
predetermined stop conditions. Ex. 1103, 72; Ex. 1106, 5:22–25.
As is pointed out by Toyota (Pet. 13) and not disputed by Hagenbuch
(PO Resp. 37), Steiner describes an alternative manner to retain the data
already written into the overwritable memory, i.e., copying the contents of
the overwritable memory to a separate memory where it would not be
overwritten. Ex. 1106, 8:21–30. Hagenbuch argues that Toyota has not
shown that the alternative manner of retaining recorded data for subsequent
analysis is more preferred than the manner already disclosed in Aoyanagi.
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PO Resp. 37–38. Specifically, Hagenbuch argues that copying data from a
first memory to a second memory doubles the need for memory and, thus,
Toyota has not shown that such doubling of memory requirement would be a
preferred way of retaining data relative to the manner of retaining data
already disclosed in Aoyanagi. Id.
Hagenbuch’s arguments are misplaced, as there is no per se rule in an
obviousness analysis that an alternative manner of accomplishing an
objective must be more preferred in every respect before it has teaching
value for consideration. Furthermore, Steiner itself discloses two ways of
retaining the recorded data, and, thus, from that perspective, both ways are
preferred by Steiner, depending on the circumstance. For instance, stopping
further data recording has the advantage of not needing a second memory,
but also has the disadvantage that further recording must be stopped. On the
other hand, transferring recorded data to a second memory has the
disadvantage of requiring a second memory, but also the advantage of not
needing to stop further recording into the first memory.
This is not a situation of making a modification solely on the basis
that the modification can be made. The prior art specifically calls for
transferring content from the first memory as a way, alternative to stopping
further recording, to retain the already recorded data in the first memory.
For the same reasons that the alternative manner of retaining data is of value
in the context of Steiner, it would be of value in the context of Aoyanagi.
The combination of familiar elements according to known methods is likely
to be obvious when it does no more than yield predictable results. KSR,
550 U.S. at 416. In the proposed combination, copying data from the first
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memory to a permanent memory in response to detection of a collision
reflects just such an application of the teachings of Aoyanagi and Steiner.
Toyota’s contention that transferring recorded data to a second memory was
a known and predictable alternative to Aoyanagi’s technique of preserving
recorded data in the same memory by not overwriting it is supported by the
disclosure of Steiner and also by the testimony of David McNamara. Ex.
1110 ¶ 50.
e) Dependent Claim 16
Hagenbuch advances a separate argument for claim 16. Claim 16
depends from claim 15, and further recites: “following detection of a first
collision, the production-related parameters are monitored and values of the
production-related parameters following detection of a first collision are
captured in the first memory.” In that connection, Hagenbuch argues:
Because there is no evidence that the skilled artisan would have
implemented the elements required by the dependent claims, in
view of additional memory burdens, Petitioner has failed to
establish a legitimate reason for the skilled artisan to have
designed an EDR/ACN system having such features. See
Winner, 202 F.3d at 1349.
PO Resp. 49.
The argument is unpersuasive. Steiner specifically describes
monitoring and recording vehicle data for a 15 second period after automatic
detection of an accident. Ex. 1106, 8:38–43. The feature does not have to
be conceived of or designed by one with ordinary skill in the art. It already
is described by Steiner. To argue that one with ordinary skill in the art
would not have implemented that design because it imposes additional
memory requirements also misses the mark. As we discussed above, actual
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implementation of an embodiment described in the prior art from a practical
perspective is not the point, and commercial viability does not control the
obviousness determination. Orthopedic Equip. Co., 702 F.2d at 1013.  Even
if the feature requires usage of additional memory to implement, Steiner
discloses the feature. In any event, it appears that no additional memory is
required to continue recording after detection of an accident, because both
Aoyanagi and Steiner, as described above, use an overwritable first memory
for recording, which deletes old data in case there is no more space to write.
f) Secondary Considerations of Nonobviousness
Hagenbuch presents certain evidence of alleged commercial success
to be considered along with Petitioner’s evidence of obviousness. PO Resp.
50–55. Patent Owner alleges that “the commercial success of the claimed
inventions is demonstrated by Toyota’s own infringement of at least
independent claims 1 and 15 of the ’867 Patent.” Id. at 50. We are not
persuaded by Patent Owner’s arguments.
At the outset, we note that claim 1 is not involved in this trial, and that
even as to claim 15, Hagenbuch has not identified a determination by any
judicial tribunal that Toyota has infringed claim 15 of the ’867 patent.
Toyota also disputes the alleged infringement. Reply 9. On this record, we
cannot proceed as though Toyota infringes claim 15 of the ’867 patent. In
any event, whether or not Toyota infringes claim 15 of the ’867 patent,
evidence of commercial success and other secondary considerations of
nonobviousness are significant only if there is a nexus between them and the
claimed invention. Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1311–
12 (Fed. Cir. 2006).
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To show commercial success as an indicator of nonobviousness,
Hagenbuch must prove that the sales were a direct result of the unique
characteristics of the claimed invention, as opposed to other economic and
commercial factors unrelated to the quality of the patented subject matter.
In re Applied Materials, Inc., 692 F.3d 1289, 1299–1300 (Fed. Cir. 2012).
Commercial success is relevant to obviousness only if there is a nexus
between the sales and the merits of the claimed invention. Id. at 1299. In
other words, commercial success is relevant only if it flows from the merits
of the claimed invention. Sjolund v. Muslund, 847 F.2d 1573, 1582 (Fed.
Cir. 1988). Hagenbuch, however, has not provided sufficient proof of such
nexus between any alleged sales and the merits of the claimed invention.
For example, any alleged commercial success could be due to the
automatic collision notification feature (Toyota’s “Safety Connect” system),
rather than the other limitations recited in the claims. Hagenbuch does not
dispute that automatic collision notification systems were known in the art.
PO Resp. 9. If the feature that created the commercial success was known in
the prior art, the success is not pertinent to the issue of obviousness.
Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 740 (Fed. Cir. 2013).
In addition, according to Hagenbuch, Toyota’s “Safety Connect” system
provides “24/7” response in case of an airbag deployment or a severe rear-
end collision. PO Resp. 53. Hagenbuch has not accounted for the
possibility that the alleged commercial success was based on the provision
of “24/7” service from a response center. None of the claims involved in
this trial requires “24/7” service from a response center. Objective evidence
of nonobviousness must be commensurate in scope with the claims with
which the evidence is offered to support. In re Kulling, 897 F.2d 1147, 1149
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(Fed. Cir. 1990); In re Lintner, 458 F.2d 1013, 1015 (CCPA 1972); In re
Tiffin, 448 F.2d 791, 792 (CCPA 1971) (Evidence directed to cups is not
commensurate in scope with claims drawn to containers.). Hagenbuch itself
states that it may be that part of Toyota’s commercial success is attributable
to features that are not claimed by Hagenbuch. PO Resp. 54.
Hagenbuch asserts that it need not negate any possible attribution to
unclaimed features, and that commercial success evidence must be
considered so long as what was sold is within the scope of the claims. PO
Resp. 54. In that regard, it is noted that consideration of evidence does not
guarantee a favorable result. We have considered the commercial success
evidence presented by Hagenbuch. The evidence provided to show
commercial success is weak, not only because of issues relating to nexus but
also because of lack of information on sales volume and market share.
Hagenbuch relies on the annual subscription price of Toyota’s “Safety
Connect” system, $ 139.95, as commercial success. PO Resp. 53.
Hagenbuch, however, provides no sales volume information or market share
data. In that connection, Hagenbuch makes merely a general assertion:
“EDRs have been installed on many (if not all) Toyota vehicles sold in the
United States for a substantial period of time.” PO Resp. 53. No
meaningful information is provided in such a statement. An important
component of the commercial success inquiry is determining market share
associated with the alleged success, relative to all competing products.
Applied Materials, 692 F.3d at 1300. Even sales volume, if provided
without market share information, is only weak evidence, if any, of
commercial success. Id. at 1299.
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Information based solely on numbers of units sold is insufficient to
establish commercial success. In re Baxter Travenol Labs, 952 F.2d 388,
392 (Fed. Cir. 1991). Absent comparative sales data such as market share,
absolute numbers are not meaningful. See Vandenberg v. Dairy Equip. Co.,
740 F.2d 1560, 1567 (Fed. Cir. 1984); In re Noznick, 478 F.2d 1260, 1264
(CCPA 1973) (“These crude figures do not indicate whether the sales came
at the expense of existing products. They are not related in any way to the
total market of dried sour cream or sour cream itself.”).
2. Conclusion
We have considered the entirety of the evidence before us, including
the evidence of obviousness and the evidence of commercial success
submitted by Hagenbuch as an indicia of nonobviousness. On balance, the
evidence of obviousness outweighs the evidence of nonobviousness, with
respect to each of claims 15–20, 23, and 24. The evidence of obviousness is
strong and the evidence of nonobviousness is weak, for the reasons
discussed above. All arguments of Hagenbuch have been considered.
Toyota has proved, by a preponderance of the evidence, that claims 15–20,
23, and 24 are unpatentable over Aoyanagi, Vollmer, and Steiner.
C. Obviousness of Claims 21 and 22 over Aoyanagi, Vollmer, Steiner,
and Fincham
For reasons discussed below, Toyota has not proved, by a
preponderance of the evidence, that either claim 21 or claim 22 is
unpatentable under 35 U.S.C. § 103, for obviousness over Aoyanagi,
Vollmer, Steiner, and Fincham.
Claim 21 depends from claim 17, and claim 17 depends from claim
15. Claim 22 depends from claim 21. Claim 17 adds that the distress signal
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includes additional information indicating whether aid may be required.
Claim 21 recites that the additional information “includes information
indicating whether the vehicle has been involved in more than one
collision.” Claim 22 requires that additional information to include “the
number of collisions.”
According to Toyota, the acceleration and deceleration data collected
by Aoyanagi after an initial collision “would indicate whether the vehicle
has been involved in more than one collision.” Pet. 45. That assertion is
supported by the testimony of David McNamara. Ex. 1110 ¶ 107. We agree
with that assertion. With regard to Fincham, which discloses an accident
recorder that monitors and records data of accelerometers and other vehicle
parameters, Toyota notes that it records data for 30 seconds after an
accident, and that that “would be sufficient time for the acceleration and
deceleration data to indicate whether the vehicle had been involved in
subsequent collisions.” Pet. 45. That assertion is supported by the
testimony of David McNamara. Ex. 1010 ¶ 107. We agree with that
contention. Nevertheless, we are unpersuaded by Toyota’s reasoning,
reproduced below, as to why it would have been obvious to one with
ordinary skill in the art to include such acceleration and deceleration data in
the wireless distress signal from the vehicle, to meet the requirement of
claim 21.
It would have been obvious to one of ordinary skill in the
art, at the time of the ’867 patent’s priority date, to further
modify Aoyanagi to include in the distress signal information
indicating whether the vehicle has been involved in more than
one collision, as taught by Fincham, in order to inform the
authorities that multiple ambulances, tow trucks, police units,
etc. will be needed. (Ex. 1110 ¶ 108–11.) This is also
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consistent with Vollmer’s stated purpose of including “all
important data with respect to the emergency situation.” (Ex.
1105, 7:21; Ex. 1110 ¶ 111.) Further, Fincham organizes data
for separate accidents separately in memory (Ex. 1108,
137:1:40–42), which advantageously permits the data for
different accidents to be analyzed separately. (Ex. 1110 ¶ 111.)
Pet. 46 (emphasis added).
Although the above-quoted text suggests that Fincham describes
sending from the vehicle a distress signal that includes acceleration and
deceleration information, no citation is provided. Also, although Toyota
cites to the testimony of David McNamara for support, paragraphs 108–111
of Mr. McNamara’s declaration contain no testimony to the effect that
Fincham discloses sending vehicle acceleration and deceleration data in a
distress signal. Nor do paragraphs 108–111 of Mr. McNamara’s Declaration
cite to any portion of Fincham that contains such disclosure. Toyota has not
shown that acceleration and deceleration data, either in Aoyanagi or
Fincham, is handled in a manner other than stored in memory for later
access.
Furthermore, sending acceleration and deceleration data, in an
emergency situation, which needs to be further processed and decoded, to
arrive at the recognition of whether more than one collision is involved, in
order to gauge what type and how much emergency service to send to the
scene of the emergency, is illogical. In an emergency situation, the response
has to be immediate. It is not rational to send recorded data which has to be
analyzed to arrive at the determination of what emergency assistance to
send. It is unexplained why rescue facilities would be expected to have the
necessary computer resources to decode the acceleration and deceleration
data in advance of sending an emergency response. Toyota’s explanation
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does not constitute the articulated reasoning with rational underpinnings
required for an obviousness determination. See In re Kahn, 441 F.3d at 988.
Toyota’s analysis with regard to claim 22 not only does not cure the
deficiencies discussed above with regard to claim 21, but adds to the
deficiency, because claim 22 is more specific than claim 21 by requiring
information on “the number of collisions.” All of the issues already
discussed with regard to claim 21 still apply. In addition, Toyota relies on
the fact that Fincham’s accident recorder has the capacity for 5 accident
events over a period of 4 weeks to support its position of sending “the
number of collisions” for the purpose of obtaining help in an emergency
situation. Pet. 46–47. The logic is incongruent, because a multi-collision
emergency situation typically does not span 4 weeks, and emergency
services would need to have been sent as soon as possible after the first
collision, even if there are other collisions later in the 4-week period. Also,
none of the references has been shown by Toyota as disclosing specifically
calculating or registering “the number of collisions.” Vollmer does not
disclose sending complex information in a distress signal, such as
acceleration and deceleration data that need to be decoded. On this record,
Toyota’s contention that it would have been obvious for one with ordinary
skill in the art to send, specifically, “the number of collisions,” is based on
inappropriate hindsight in light of the disclosure of the ’867 patent.
We have reviewed the Petition, the Patent Owner Response, and
Petitioner’s Reply, as well as the relevant evidence discussed in those
papers. We are not persuaded, by a preponderance of the evidence, that
claims 21 and 22 would have been obvious over Aoyanagi, Vollmer, Steiner,
and Fincham under 35 U.S.C. § 103.
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III. CONCLUSION
Toyota has proved, by a preponderance of the evidence, that claims
15–20, 23, and 24 are unpatentable as obvious over Aoyanagi, Vollmer, and
Steiner. Toyota has not, however, proved by a preponderance of the
evidence that claims 21 and 22 are unpatentable as obvious over Aoyanagi,
Vollmer, Steiner, and Fincham.
This is a final written decision under 35 U.S.C. § 318(a).
IV. ORDER
It is
ORDERED that claims 15–20, 23, and 24 of the ’867 patent are
unpatentable; and
FURTHER ORDERED that parties to the proceeding seeking judicial
review of this final written decision must comply with the notice and service
requirements of 37 C.F.R. § 90.2.

PETITIONER:

Robert C. Mattson
John Kern
cpdocketmattson@oblon.com
cpdocketkern@oblon.com

PATENT OWNER:

John B. Conklin
jconklin@leydig.com