Carrum Technologies, LLC, which is wholly owned by Pratima Instruments, LLC (a Delaware limited liability company)

Patent Trials and Appeals Board

Oct 19, 2020

IPR2020-00055 (P.T.A.B. Oct. 19, 2020)

Trials@uspto.gov
571-272-7822
Paper 9
Entered: October 19, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
BMW OF NORTH AMERICA, LLC, and FORD MOTOR COMPANY,
Petitioners,
v.
CARRUM TECHNOLOGIES, LLC
Patent Owner.
____________
IPR2019-00903
Patent 7,512,475 B2
____________
Before LYNNE H. BROWNE, PATRICK R. SCANLON, and
JON B. TORNQUIST, Administrative Patent Judges.
TORNQUIST, Administrative Patent Judge.
JUDGMENT
Final Written Decision
Determining Some Challenged Claims Unpatentable
35 U.S.C. § 318(a)
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I. INTRODUCTION
A. Background and Summary
BMW of North America, LLC (“Petitioner”) filed a Petition (Paper 1,
“Pet.”) requesting an inter partes review of claims 1–12 of U.S. Patent
No. 7,512,475 B2 (Ex. 1001, “the ’475 patent”). Carrum Technologies,
LLC (“Patent Owner”) filed a Preliminary Response to the Petition
(Paper 6). Upon review of the parties’ arguments and supporting evidence,
we instituted an inter partes review of all claims and grounds asserted in the
Petition (Paper 9, “Institution Decision” or “Inst. Dec.”).
Patent Owner subsequently filed a Patent Owner’s Response
(Paper 13, “PO Resp.”), Petitioner filed a Reply (Paper 15, “Pet. Reply), and
Patent Owner filed a Sur-reply (Paper 18, “Sur-reply”).
On April 17, 2020, we granted a motion for joinder in IPR2020-
00055, joining Ford Motor Company as a Petitioner in this proceeding.
Paper 17.
An oral hearing was held on July 21, 2020, and a transcript of the
hearing is included in the record. Paper 22 (“Tr.”).
B. Real Parties in Interest
Petitioner identifies BMW of North America, LLC, BMW
Manufacturing Co., LLC, Bayerische Motoren Werke, AG, and Ford Motor
Company as real parties in interest. Pet. 48; IPR2020-00055, Paper 1, 48.
Patent Owner identifies Carrum Technologies, LLC and Pratima
Instruments, LLC as real parties in interest. Paper 5, 1.
C. Related Matters
The parties identify Carrum Technologies, LLC v. BMW of North
America, LLC, No. 1:18-cv-01645 (D. Del. Oct. 23, 2018); Carrum
Technologies, LLC v. FCA US LLC, No. 1:18-cv-01646 (D. Del. Oct. 23,
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2018); and Carrum Technologies, LLC v. Ford Motor Company, No. 1:18-
cv-01647 (D. Del. Oct. 23, 2018) as related matters. Paper 5, 1; Pet. 48.
The parties also identify as related matters IPR2019-00902 (institution
denied) and IPR2019-00927 (institution denied), which were likewise
directed to the ’475 patent. Pet. 48; Paper 5, 1.
D. The ’475 Patent
The ’475 patent discloses “a method and system for controlling a
vehicle having” an adaptive cruise control (ACC) system. Ex. 1001, 1:7–10.
The disclosed ACC system may include a vehicle speed sensor for
measuring a vehicle’s speed, a lateral acceleration sensor for measuring the
acceleration of the vehicle in the direction of the vehicle’s lateral axis in a
turn, and a yaw rate sensor for measuring the rate that a vehicle is rotating
about its vertical axis. Id. at 4:18–23.
A controller may determine the vehicle’s position within a turn from
the lateral acceleration data provided by the sensors. Id. at 4:27–29, 5:41–47
(explaining how the disclosed system determines whether the vehicle is “in
the entry of a turn, in the middle of a turn, or in the exit of a turn” using
lateral acceleration data). In addition to lateral acceleration, the ’475 patent
instructs that the controller may also use other data to predict whether the
vehicle is in a turn, including yaw rate, yaw rate of change, and the vehicle’s
speed. Id. at 6:1–6.
When the controller determines that the vehicle has entered a turn, it
preemptively instructs the vehicle’s braking system to reduce the speed of
the vehicle such that the lateral acceleration is reduced to a predetermined
maximum limit according to the vehicle’s position within the turn. Id. at
6:20–29. Upon reducing the vehicle’s speed, the controller may use the
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vehicle’s lateral acceleration, yaw rate, yaw rate of change, and speed data to
estimate the path of the vehicle in the turn. Id. at 6:44–47.
In one embodiment of the ’475 patent, a method of controlling a
vehicle includes
the steps of operating the vehicle in an adaptive cruise control
mode such that the vehicle is travelling at a set speed;
determining whether the vehicle is in a turn in the vehicle’s
path by detecting a change in the vehicle’s lateral acceleration;
and when the vehicle is determined to be in the turn, reducing
the vehicle’s speed according to the vehicle’s position in the
turn, monitoring for objects and maintaining the vehicle’s speed
if an object is positioned out of the path of the vehicle.
Id. at 2:58–67.
E. Illustrative Claim
Of the challenged claims, claims 1 and 6 are independent, with
claims 2–5 depending, directly or indirectly, from claim 1 and claims 7–12
depending, directly or indirectly, from claim 6. Claim 1 is illustrative of the
challenged claims and is reproduced below:
1. A method of controlling a vehicle having an adaptive cruise
control system capable of controlling a vehicle speed and
obtaining a vehicle lateral acceleration, said method comprising
the steps of:
measuring a lateral acceleration from a lateral acceleration
sensor;
detecting a change in a vehicle lateral acceleration based on a
change in the measured lateral acceleration;
determining when the vehicle is in a turn based on the detected
change in the vehicle lateral acceleration; and
if a vehicle is in a turn, reducing the vehicle speed according to
the determination that the vehicle is in the turn and the detected
change in the vehicle lateral acceleration.
Ex. 1001, 8:7–19.
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F. Prior Art and Asserted Grounds
Petitioner asserts that claims 1–12 would have been unpatentable on
the following grounds (Pet. 9–10):
Claims
Challenged
35 U.S.C. § References/Basis
1, 4, 5 1031 Brochure,2 Schmitt3, AAPA4
2, 3 103 Brochure, Schmitt, AAPA, Ishizu5
6, 8, 9 103 Brochure, Schmitt
7 103 Brochure, Schmitt, Ishizu
10–12 103 Brochure, Schmitt, Khodabhai6
Petitioner submits the Declaration of Dr. Azim Eskandarian
(Ex. 1003) in support of its unpatentability arguments in the Petition and a
second Declaration of Dr. Eskandarian in support of its arguments in the
Reply (Ex. 1009). Patent Owner supports its arguments with the declaration
of Dr. Gregory M. Shaver. Ex. 2003.
II. ANALYSIS
A. Legal Standards
To prevail in its challenge to claims 1–12 of the ’475 patent,
Petitioner has the burden to establish by a preponderance of the evidence
that the challenged claims are unpatentable. 35 U.S.C. § 316(e) (2018);

1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
Stat. 284, 287–88 (2011), amended 35 U.S.C. § 103, effective March 16,
2013. Because the application from which the ’475 patent issued was filed
before this date, the pre-AIA version of § 103 applies.
2 BMW Brochure, Bayerische Motoren Werke, 2002 (“Brochure”)
(Ex. 1007).
3 Schmitt, US 6,456,924 B1, issued Sept. 24, 2002 (Ex. 1004).
4 Petitioner contends statements contained in the ’475 patent constitute
Applicant Admitted Prior Art (“AAPA”) (Ex. 1001).
5 Ishizu, US 2001/0044691 A1, published Nov. 22, 2001 (Ex. 1005).
6 Khodabhai, US 5,959,569, issued Sept. 28, 1999 (Ex. 1006).
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37 C.F.R. § 42.1(d) (2019). This burden never shifts to Patent Owner.
Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378
(Fed. Cir. 2015).
A patent claim is unpatentable under 35 U.S.C. § 103 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. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations, including (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
(3) the level of ordinary skill in the art; and (4) if in the record, objective
evidence of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966).
B. Level of Ordinary Skill in the Art
Petitioner contends one of ordinary skill in the art would have had
“knowledge or familiarity with in-vehicle computing” and “a bachelor’s
degree in electrical engineering, computer engineering, or a related
engineering discipline and two to three years of industry experience in the
field of automotive control systems or automotive engineering, or equivalent
experience, education, or both.” Pet. 9 (citing Ex. 1003 ¶ 23).
Patent Owner does not dispute Petitioner’s definition of one of
ordinary skill in the art. PO Resp. 3.
Because it is consistent with the disclosures of the ’475 patent and the
prior art of record, we adopt Petitioner’s uncontested definition of one of
ordinary skill in the art. We note, however, that neither party contends that
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the proper determination of the level of ordinary skill in the art would impact
the result in this proceeding.
C. Claim Construction
In this proceeding, the claims of the ’475 patent are construed “using
the same claim construction standard that would be used to construe the
claim in a civil action under 35 U.S.C. § 282(b).” See Changes to the Claim
Construction Standard for Interpreting Claims in Trial Proceedings Before
the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340, 51,340, 51,358
(Oct. 11, 2018) (amending 37 C.F.R. § 42.100(b) effective November 13,
2018) (now codified at 37 C.F.R. § 42.100(b) (2019)). Under that standard,
the words of a claim are generally given their “ordinary and customary
meaning,” which is the meaning the term would have had to a person of
ordinary skill at the time of the invention, in the context of the entire patent
including the specification. Phillips v. AWH Corp., 415 F.3d 1303, 1312–13
(Fed. Cir. 2005) (en banc).
Both parties contend that the claim terms of the ’475 patent should be
given their plain and ordinary meaning. Pet. 9; PO Resp. 13. Upon review
of the prior art of record and the parties’ arguments, we agree that no claim
terms of the ’475 patent require express construction for purposes of this
decision and that the ordinary and customary meaning should be applied to
all claim terms. See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor
Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (quoting Vivid Techs., Inc. v. Am.
Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms
need be construed that are in controversy, and only to the extent necessary to
resolve the controversy.”)).
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D. Claims 1, 4, and 5 over the Brochure, Schmitt, and AAPA
Petitioner contends that claims 1, 4, and 5 would have been obvious
over the combined disclosures of the Brochure, Schmitt, and AAPA.
Pet. 10–23.
1. The Brochure
The Brochure describes the technological features and refinements
included with certain 2002 model year BMW vehicles. Ex. 1007, 4;
Ex. 1008 ¶¶ 11–12. One technological feature disclosed in the Brochure is
an Active Cruise Control (ACC) system that utilizes a radar sensor mounted
beneath the front bumper of a vehicle to “determine the position and speed
of the preceding vehicle.” Ex. 1007, 21. The Brochure explains that “[o]n
straight highway sections Active Cruise Control can use the radar sensor to
determine whether another vehicle is proceeding in your own lane or an
adjoining one.” Id. The Brochure notes, however, that “[t]his concept alone
is not enough in curves,” where the ACC system must rely on additional
data from the vehicle’s Dynamic Stability Control (DSC) system to project
the vehicle’s trajectory and “determine whether a detected vehicle will have
any effect on” the host vehicle’s path. Id.
In addition to assisting in monitoring preceding vehicles, the Brochure
explains that the DSC utilizes sensors to monitor “the current rate of lateral
acceleration,” the speed of the host vehicle, the steering wheel angle, “the
vehicle’s tendency to rotate around its vertical axis” (or yaw), “lateral
acceleration,” and braking pressure. Id. at 24–25. The DSC uses this
sensory data to determine the vehicle’s current dynamic status, which is then
“compared with reference data stored in the DSC computer.” Id. at 25. If
the “DSC detects a deviation between the vehicle’s current operational status
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and the reference data,” it enters its active mode and may intervene both
“through the brake system and the engine management.” Id.
2. Schmitt
Schmitt discloses a method and device for improving vehicle traction,
especially in curves. Ex. 1004, 1:7–8, 1:38–49. In one embodiment, curve
entry and curve exit are ascertained “by differentiating the transverse
acceleration or similar quantities that vary during cornering, such as wheel
speed difference of the wheels of the non-drive axel, yaw rate quantities, or
steering angle quantities.” Id. at 3:28–34. In at least one embodiment, curve
entry is recognized when the change of transverse acceleration exceeds “a
predefined limiting value.” Id. at 3:34–37, 3:48–50 (noting the use of
transverse acceleration to determine whether a limiting value has been
exceeded). Curve vertex is identified when, subsequent to curve entry, the
transverse acceleration fails to meet the limiting value but at the same time
exceeds a different limiting value. Id. at 3:37–41. Finally, “[i]f the change
of [lateral acceleration] fails to meet a predefined limiting value, a curve exit
is inferred.” Id. at 3:41–42.
Schmitt explains that information on the respective cornering phase is
used to influence the drive control. Id. at 3:51–54. In particular, when curve
entry is recognized, slip thresholds for activating the traction controller are
reduced as compared to thresholds for “straight-ahead driving,” and at curve
exit “the slip thresholds are raised as compared to the slip thresholds
selected during cornering.” Id. at 3:55–4:3. Using these modified slip
thresholds, if Schmitt determines that slippage is imminent, the traction
controller may reduce at least one output quantity of the drive unit of the
vehicle, such as drive torque, to improve stability. Id. at 2:66–3:6. “Besides
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this drive intervention, in some exemplary embodiments, a brake
intervention” may also be performed “at the spinning wheel.” Id. at 3:6–8.
3. Alleged AAPA
The ’475 patent discusses various features and problems with prior art
ACC systems. Ex. 1001, 1:64–2:43; Pet. 13–14. Some of these problems
are illustrated in Figure 1 of the ’475 patent, which is reproduced below:

Figure 1 is a diagrammatic view of a vehicle having a prior art ACC system
in a turn situation and shows problems that may occur when a host vehicle is
at time points T1–T4. Ex. 1001, 2:1–43, 3:50–51. According to the ’475
patent, one problem present at time points T2 and T3 is that prior art ACC
systems were “not capable of disregarding the stationary targets not within
the vehicle’s path (i.e., ‘out-of-path’ targets),” such as stationary objects 110
and 112. Id. at 2:1–31. A problem presented at time point T4 is that prior
art systems would maintain their set cruising speed in turning situations,
which the ’475 patent explains could “cause excessive lateral acceleration
and the possible loss of control of the host vehicle.” Id. at 2:32–43.
The Petition contends that the ’475 patent’s discussion of existing
problems in prior art systems constitutes applicant admitted prior art.
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Pet. 13–16. As discussed in the Institution Decision, however, Petitioner
does not direct us to any statement in the ’475 patent to suggest that the
identified problems with prior art ACC systems were known to others in the
art, nor any citation in the ’475 patent to prior art references that disclose
these problems. Inst. Dec. 9–10. Thus, we reiterate our conclusion set forth
in the Institution Decision that the ’475 patent’s disclosures do not constitute
applicant admitted prior art. Id.
Petitioner does not contest our determination that the ’475 patent does
not constitute applicant admitted prior art and does not further rely on the
alleged admissions to support its obviousness challenges. Pet. Reply 6–7;
Tr. 5:12–18. Accordingly, we do not include or further analyze the alleged
AAPA in any of Petitioner’s proposed grounds of unpatentability.
4. Analysis: Claim 1
Petitioner contends the Brochure and Schmitt teach or suggest every
limitation of claim 1 of the ’475 patent. In particular, Petitioner contends the
Brochure discloses measuring a vehicle’s lateral acceleration using a lateral
acceleration sensor, detecting “the lateral acceleration rate (i.e., a detected
change in the lateral acceleration),” and determining whether the vehicle is
in a turn based on the detected change in vehicle lateral acceleration.
Pet. 17–18 (citing Ex. 1003 ¶¶ 46–48; Ex. 1007, 21, 24). Petitioner further
contends that Schmitt discloses reducing a vehicle’s speed according to a
determination that the vehicle is in a turn and based on the detected change
in vehicle lateral acceleration. Id. at 19–20 (citing Ex. 1004, 2:59–62, 2:66–
3:9, 3:28–37, 4:38–39, 4:41–5:11; Ex. 1003 ¶ 51).
With respect to the reason to implement Schmitt’s speed reducing
method in the Brochure, Petitioner contends that because the problem of
excess lateral acceleration in turning situations “was known in the art, and
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because Schmitt is in the same field of endeavor—vehicle safety systems,”
“a person of skill would readily combine the Brochure with Schmitt.” Id. at
21 (citing Ex. 1003 ¶ 53).
Patent Owner contends independent claim 1 would not have been
obvious over the Brochure and Schmitt because (1) Schmitt is not analogous
art to the ’475 patent, (2) the Brochure does not disclose “measuring a lateral
acceleration from a lateral acceleration sensor,” (3) the Brochure does not
disclose “detecting a change in a vehicle lateral acceleration based on a
change in the measured lateral acceleration,” and (4) Petitioner has failed to
show that one of ordinary skill in the art would have sought to combine the
Brochure and Schmitt to arrive at the invention recited in claim 1. PO Resp.
16–36, 43–49. We address these arguments in turn.
a) The Brochure and Schmitt are Analogous to the ’475 Patent
A reference may qualify as prior art for an obviousness determination
“only when analogous to the claimed invention.” In re Bigio, 381 F.3d
1320, 1325 (Fed. Cir. 2004). “Two separate tests define the scope of
analogous prior art: (1) whether the art is from the same field of endeavor,
regardless of the problem addressed and, (2) if the reference is not within the
field of the inventor’s endeavor, whether the reference still is reasonably
pertinent to the particular problem with which the inventor is involved.” Id.
Petitioner contends that because Schmitt and the Brochure are in the same
field of endeavor—vehicle safety systems—they may be combined in its
obviousness grounds. Pet. 21 (citing Ex. 1003 ¶ 53).
Patent Owner argues Schmitt’s “vehicle stability and traction control”
system “is not directed to an ACC system and so is not in the same field of
endeavor as the Brochure and ’475 patent.” Sur-reply 22–23; PO Resp. 26–
27 (citing Ex. 2006, 144, 146, 148) (asserting that ACC systems are
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marketed as improving driver comfort and in some situations an ACC
system “may not actually contribute to vehicle safety at all”). Patent Owner
further contends that Petitioner has not asserted that Schmitt is reasonably
pertinent to the particular problem addressed in the ’475 patent. Sur-reply
23. Petitioner counters that ACC systems seek to improve both operator
comfort and safety, which demonstrates that the Brochure, Schmitt, and the
’475 patent are all in the same field of endeavor. Pet. Reply 7–10 (citing Ex.
1009 ¶¶ 25, 28, 30–36; Ex. 2006, 143–144, 146).
As noted by Patent Owner, the ’475 patent and the Brochure disclose
ACC systems, whereas Schmitt discloses a vehicle control system.
PO Resp. 26–27. The ’475 patent and the Brochure demonstrate, however,
that ACC systems control the operation of a vehicle and, similar to the
system of Schmitt, are concerned with both operator comfort and safety.
Ex. 1001, 2:29–31 (“This excessive braking may annoy and provide
discomfort to the driver of vehicle 102.”), 2:32–36 (noting that
“maintenance of a set cruise speed in turning situations may cause excessive
lateral acceleration and the possible loss of control of the host vehicle”);
Ex. 1007, 21, 24 (the Brochure disclosing the dual goals of vehicle safety
and driver comfort); Ex. 1009 ¶¶ 23–36. Thus, we find that Schmitt and the
Brochure are in the same field of endeavor as the ’475 patent—vehicle
control systems—and represent analogous art that may be applied in an
obviousness challenge.7 Ex. 1004, 1:44–49 (Schmitt noting that its system
will both improve traction and driver comfort).

7 Because the Brochure and Schmitt are in the same field of endeavor as the
’475 patent, we need not address the second prong of the analogous art test.
We note, however, that the ’475 patent addresses two problems—excess
lateral acceleration in a turn and avoiding braking for out-of-path targets.
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b) Measuring a lateral acceleration from a lateral acceleration sensor
The Brochure’s ACC system uses data supplied by the DSC’s suite of
sensors, which monitor, among other things, lateral acceleration. Ex. 1007,
21, 24. Petitioner contends the sensor that monitors lateral acceleration in
the Brochure is a lateral acceleration sensor, as recited in claim 1. Pet. 17;
Ex. 1003 ¶ 46 (Dr. Eskandarian asserting that in his opinion the Brochure
teaches a lateral acceleration sensor).
Patent Owner contends the Brochure merely discloses a suite of
unnamed sensors that “monitor[] the current rate of lateral acceleration[,] the
speed[, and] the steering wheel angle” of the host vehicle and “keep track of
the vehicle’s tendency to rotate around its vertical axis[,] lateral
acceleration[,] steering wheel angle[, and] braking pressure.” PO Resp. 43–
44 (citing Ex. 1007, 24; Ex. 2003 ¶ 102). And because there are multiple
ways that lateral acceleration can be monitored or kept track of, including
calculating this value based on yaw rate and steering angle, Patent Owner
contends the identified disclosures of the Brochure are insufficient to show
that lateral acceleration is measured by a lateral acceleration sensor. Id. at
44–45; Sur-reply 7–8.
In reply, Petitioner asserts that although there are different ways to
determine lateral acceleration, directly measuring lateral acceleration using a
sensor is the “most straightforward way” to do so and “is what one of skill
would have understood by reading the Brochure.” Pet. Reply 15 (citing
Ex. 1009 ¶ 68; Ex. 1011, 100). In response to Patent Owner’s argument that

Ex. 1001, 2:47–50. The Brochure and Schmitt are each reasonably pertinent
to one or both of these problems. Ex. 1004, 1:44–49 (reducing vehicle speed
in a turn); Ex. 1007, 21 (the Brochure reducing vehicle speed for in-path
targets), 24–25 (assessing vehicle stability in a turn).
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the sensors are unnamed, Petitioner asserts that one of ordinary skill in the
art would have understood that an unnamed sensor that keeps track of lateral
acceleration “is most likely a lateral acceleration sensor.” Id. at 16 (citing
Ex. 1009 ¶¶ 69–70).
Patent Owner contends Petitioner’s argument that the Brochure’s
unnamed sensor is “most likely a lateral acceleration sensor” is “too little,
too late,” as such evidence was necessary to support Petitioner’s prima facie
case in the Petition. Sur-reply 7.
The Brochure discloses that the vehicle’s sensors monitor “the current
rate of lateral acceleration” and “keep track” of “lateral acceleration.”
Ex. 1007, 24. We are directed to no disclosure in the Brochure of the
sensors obtaining lateral acceleration in any manner other than directly
measuring this value. Id. (“Ultra-sensitive sensors serve as the core
components” and “keep track of . . . lateral acceleration”). Thus, we credit
the testimony of Dr. Eskandarian that one of ordinary skill in the art would
have understood that the sensor in the Brochure that keeps track of lateral
acceleration and monitors the current rate of lateral acceleration is a lateral
acceleration sensor. Ex. 1003 ¶ 46; Ex. 1009 ¶¶ 69–70. Moreover, to the
extent it is possible that the disclosed sensors do not directly measure lateral
acceleration, we agree with Dr. Eskandarian that the Brochure at a minimum
suggests using a lateral acceleration sensor to measure lateral acceleration.
Ex. 1009 ¶¶ 68–70.
With respect to Patent Owner’s assertion that Petitioner’s arguments
come too late, we note that in his first declaration Dr. Eskandarian testifies
that lateral acceleration sensors were known in the art and that one of
ordinary skill in the art would have understood that the brochure teaches
measuring vehicle lateral acceleration from a lateral acceleration sensor.
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Ex. 1003 ¶ 46. Dr. Eskandarian’s subsequent testimony that one of ordinary
skill in the art reading the Brochure would have understood that the
Brochure directly measures lateral acceleration using a lateral acceleration
sensor is consistent with this position, and his testimony regarding unnamed
sensors directly responds to arguments presented in Patent Owner’s
Response. Ex. 1009 ¶ 69. Thus, we find that Petitioner’s arguments relating
to the lateral acceleration sensor do not constitute improper new arguments.
See Apple Inc. v. Andrea Elecs. Corp., 949 F.3d 697, 706–707 (Fed. Cir.
2020) (explaining that a petitioner may introduce new evidence in reply as
long as this evidence is responsive to arguments raised in patent owner’s
response and does not raise a new theory of unpatentability).
c) Detecting a change in a vehicle lateral acceleration based on a change
in the measured lateral acceleration
Petitioner contends the Brochure includes a sensor that measures the
vehicle’s lateral acceleration and discloses using a vehicle’s “lateral
acceleration rate (i.e., a detected change in the lateral acceleration)” to
calculate a curve radius. Pet. 17–18 (citing Ex. 1007, 24 (using lateral
acceleration rate to “calculate a curve radius”); Ex. 1003 ¶ 47). Thus,
Petitioner contends the Brochure discloses “detecting a change in a vehicle
lateral acceleration based on a change in the measured lateral acceleration,”
as recited in claim 1. Id.
Patent Owner contends Petitioner’s argument fails for at least three
reasons. First, Patent Owner contends that, as discussed above, the Brochure
does not disclose directly measuring lateral acceleration using a lateral
acceleration sensor. PO Resp. 46. We do not find this argument persuasive
because, for the reasons discussed above in Section II.D.4.b, we find that the
Brochure teaches or suggests using a lateral acceleration sensor.
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Second, Patent Owner asserts that although Petitioner alleges that a
sensor in the DSC “measures the vehicle’s lateral acceleration” and that “the
lateral acceleration rate (i.e., a detected change in the vehicle lateral
acceleration) of the vehicle is used to calculate a curve radius,” it “never
connects the two” to assert that the “lateral acceleration rate” is based on a
change in the measured lateral acceleration. Id. at 46–47 (citing Pet. 17–18).
We do not find this argument persuasive because, although the Petition
could have been more explicit in its discussion of this claim limitation, we
understand the thrust of the Petition to be that one of ordinary skill in the art
would have understood that the data from the lateral acceleration sensor is
used to determine the vehicle’s lateral acceleration rate. Pet. 17–18 (citing
Ex. 1003 ¶ 47); Pet. Reply 18 (citing Ex. 1009 ¶¶ 80–81).
Finally, Patent Owner contends a person of ordinary skill in the art
would have understood that a “lateral acceleration rate” is not “a detected
change in the lateral acceleration.” PO Resp. 48. In support of this
argument, Patent Owner looks to the language of claim 7, which requires
“measuring a vehicle yaw rate” and “a change in the vehicle yaw rate.” Id.
(citing Ex. 1001, 8:55–56). Patent Owner contends this claim structure
“makes . . . clear” that “yaw rate cannot be the same as a change in the yaw
rate” and, by analogy, that a “lateral acceleration rate is not the same as
using a change in the lateral acceleration rate.” Id. (citing Ex. 2003 ¶ 112).
Dr. Eskandarian testifies that the term “rate” means a “change” in a
certain parameter over time. Pet. Reply 17 (citing Ex. 1009 ¶ 74; Ex. 1011,
101). Accordingly, Petitioner asserts that yaw rate is the rate of change in
yaw and the change in yaw rate is the change of the change in yaw. Id. at
17–18. Likewise, Petitioner contends the Brochure’s lateral acceleration
rate, or “rate of lateral acceleration,” is the change in lateral acceleration. Id.
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Upon review of the parties arguments, we credit the testimony of
Dr. Eskandarian that the term “rate” means a “change” in a certain parameter
over time and that one of ordinary skill in the art would have interpreted the
term “lateral acceleration rate” in the Brochure to mean the rate of change in
lateral acceleration over time. Ex. 1009 ¶¶ 73–81; Ex. 1007, 24–25.
Dr. Shaver’s counter testimony is not persuasive because he does not
persuasively address the meaning of the term “rate” in the challenged claims
or persuasively address the difference in meaning of the terms “lateral
acceleration” and “lateral acceleration rate” in the Brochure. See Ex. 2003
¶¶ 107–115; Ex. 1007, 24–25. Thus, we find that the Brochure teaches or
suggests “detecting a change in a vehicle lateral acceleration based on a
change in the measured lateral acceleration.”
d) Reason to Combine
With respect to claim 1, the Petition asserts that one of ordinary skill
in the art would have sought to implement Schmitt’s method of reducing
speed in a curve when a change in lateral acceleration exceeds a preset
maximum because it was well known, as disclosed in Schmitt, that excessive
lateral acceleration in a turn could cause a vehicle to lose control. Pet. 19–
20; see also id. at 21 (“Because this problem was known in the art, and
because Schmitt is in the same field of endeavor—vehicle safety systems, a
person of skill would readily combine the Brochure with Schmitt.”).
Patent Owner asserts that (1) Dr. Eskandarian’s testimony is
“unreliable” because he admitted during cross-examination that the
Brochure already reduces lateral acceleration in a curve when necessary to
stabilize the vehicle, (2) because the Brochure already solves the purported
problem in the art, there is no persuasive explanation in the Petition as to
why one of ordinary skill in the art would have combined the Brochure and
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Schmitt in the manner proposed, and (3) Petitioner’s argument that it was
known in the art “that excessive lateral acceleration could cause a vehicle to
lose control” is too generic to support an obviousness conclusion.8 PO Resp.
17–19, 28–29 (citing Ex. 2005, 44:4–22).
In reply, Petitioner asserts that the need to reduce the speed of a
vehicle when entering a turn is “not only well-known, but common-
sensical.” Pet. Reply 6. Petitioner further asserts that Dr. Eskandarian never
testified that the system described in the Brochure already includes the
functions the Board found that Schmitt discloses, and only confirmed that
the Brochure’s system constantly monitors multiple parameters and,
“depending on what the road surface conditions are and the speed,” can
apply the brakes when needed. Id. at 3 (citing Ex. 2005, 44:4–22).
Upon review of the parties’ evidence and arguments, we credit
Dr. Eskandarian’s testimony, which is supported by the express disclosures
of Schmitt, that the problem of excess lateral acceleration in curves was well
known in the art. Ex. 1003 ¶ 51 (citing Ex. 1004, 2:59–62, 3:28–37, 4:38-
39, 4:41–5:11). Given that the problem of excess lateral acceleration due to
entering a curve at too high a speed was well known in the art, we find
Petitioner’s argument persuasive that one of ordinary skill in the art would

8 Patent Owner also asserts that because Schmitt is not analogous art and is
not directed to the problem of “excessive lateral acceleration caused by the
maintenance of a set cruise speed in turning situations,” Petitioner’s
motivation to combine arguments fail. PO Resp. 26–28, 30–32. These
arguments are not persuasive because, as discussed previously, the
Brochure, Schmitt, and the ’475 patent are analogous art and the law does
not require that the prior art references be combined for the same reasons
outlined by the inventor. See In re Fulton, 391 F.3d 1195, 1202 (Fed. Cir.
2004) (“the law does not require that the references be combined for the
reasons contemplated by the inventor.”).
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have sought to implement in the Brochure Schmitt’s method of improving
vehicle safety by decreasing vehicle speed based on the vehicle being in a
curve and the detected change in the vehicle’s lateral acceleration. Pet. 20–
21.
We do not find Patent Owner’s counter arguments persuasive.
Although the Brochure can detect whether a vehicle is in a turn (Ex. 1007,
21) and may reduce the speed of the vehicle if necessary to maintain vehicle
stability (id. at 24–25), we agree with Petitioner that Dr. Eskandarian did not
testify that the Brochure’s DSC system is configured to reduce the vehicle
speed according to a determination that the vehicle is in a turn and a detected
change in vehicle lateral acceleration, as is expressly disclosed in Schmitt.
Pet. 20 (citing Ex. 1004, 2:59–62, 3:28–37, 4:38–39, 4:41–5:11); Tr. 44:4–
22.
Moreover, we find that Petitioner’s reasoning as to why one of
ordinary skill in the art would have sought to combine the identified portions
of the Brochure and Schmitt is not too generic. The Petition identifies both a
specific problem known in the prior art (excess vehicle speed and lateral
acceleration in turns) and a specific solution to this problem (implementation
of Schmitt’s method of reducing vehicle speed based on the vehicle’s
location in a turn (curve entry, vertex, and exit) and a measured lateral
acceleration). Pet. 19–20. This is sufficient to explain why one of ordinary
skill in the art would have sought to combine the identified disclosures of the
Brochure and Schmitt.
In view of the foregoing, we find that the combination of the Brochure
and Schmitt teaches or suggests every limitation of claim 1 of the ’475
patent. We further find that one of ordinary skill in the art would have
sought to combine the two references to address the known problem of loss
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of vehicle control due to excess speed in a turn. Accordingly, Petitioner has
demonstrated by a preponderance of the evidence that claim 1 of the ’475
patent would have been obvious over the Brochure and Schmitt.
5. Analysis: Claim 4
Claim 4 depends from claim 1 and further requires “a step of
determining the vehicle’s position within the turn.” Ex. 1001, 8:30–31.
Petitioner and Dr. Eskandarian assert that one of ordinary skill in the
art would have sought to implement Schmitt’s method of determining a
vehicle’s position within a turn in order to make “more accurate the
determination to reduce a vehicle’s speed” in the Brochure. Pet. 22
(asserting that the accuracy of the Brochure’s projected path is critical to the
ACC system’s operation); Ex. 1003 ¶ 54.
Dr. Eskandarian’s testimony that one of ordinary skill in the art would
have sought to determine a vehicle’s position in a turn is directly supported
by Schmitt, which discloses improving user comfort and vehicle safety by
identifying whether a vehicle is at curve entry, curve vertex, or curve exit.
Ex. 1003 ¶ 55; Ex. 1004, 1:41–45 (preventing a “traction gap” on curve exit
being “felt unpleasantly by the driver”), 3:28–37, 3:60–66 (noting that slip
thresholds are reduced at curve entry to increase the stability of the vehicle).
Thus, we credit the testimony of Dr. Eskandarian that one of ordinary skill in
the art would have sought to determine the location of a vehicle in a curve
when determining whether to reduce vehicle speed. Ex. 1003 ¶¶ 54–56.
As noted by Patent Owner, Dr. Eskandarian testified on cross-
examination that there are no particular flaws in the Brochure’s system and
that it works perfectly. PO Resp. 51 (citing Ex. 2005, 63:11–64:9, 62:3–9;
Ex. 2003 ¶¶ 118–120). The Brochure does not explain, however, how it
projects a vehicle’s path within a turn. Ex. 1007, 21, 25. Thus, we find
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persuasive Dr. Eskandarian’s testimony that one of ordinary skill in the art
seeking to implement the accurate and successful system of the Brochure
would have looked to prior art systems to determine how to accurately
project a vehicle’s path and determine whether the vehicle’s speed should be
reduced. Ex. 1003 ¶¶ 54–56 (Dr. Eskandarian asserting that Schmitt’s
method “would make any determination that a vehicle had entered a curve
more accurate thus making more accurate the determination to reduce a
vehicle’s speed”); Ex. 2005, 60:7–66:22; Pet. Reply 18–19.
Patent Owner’s argument that Dr. Eskandarian changed his testimony
during cross-examination, recanting any reliance on accuracy as a reason to
implement Schmitt’s method in the Brochure, presents a close question.
Dr. Eskandarian’s testimony that the Brochure can be made “more accurate”
is somewhat ambiguous. Ex. 1003 ¶ 54. Was Dr. Eskandarian referring to
using a known and accurate method as an implementation detail for the
Brochure or referring to a method of improving the accuracy of the
Brochure’s existing system? Dr. Eskandarian made clear during his
deposition, however, what he intended by his direct testimony, i.e., that one
of ordinary skill in the art would have looked to Schmitt in order to
understand how to accurately reproduce the system and functionality
described in the Brochure. Ex. 2005, 62:11–66:22; Ex. 1003 ¶ 56. Patent
Owner was aware of this testimony and had a full and fair opportunity to
respond to it in its Response and Sur-reply. Thus, we do not agree that
Petitioner and Dr. Eskandarian changed their argument in reply or that
Patent Owner was not given a full and fair opportunity to respond to
Petitioner’s argument.
Addressing Dr. Eskandarian’s “implementation detail” argument,
Patent Owner asserts that one of ordinary skill in the art would not have had
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“any reason to believe that Schmitt discloses the implementation details of
the Brochure” and Petitioner’s argument that Schmitt’s method would make
the Brochure more accurate implies that Petitioner believes “that Schmitt
discloses different implementation details than those utilized in the
Brochure’s system.” PO Resp. 24 (citing Pet. 22; Ex. 1003 ¶ 56; Ex. 2003
¶¶ 86–87). Patent Owner further argues that the Board’s decision in Hulu,
LLC v. Sound View Innovations, LLC, IPR2018-00582, Paper 34, (PTAB
Aug. 5, 2019) (informative) precludes reliance on “implementation details”
as a reason to combine two or more references. Id. at 23–24.
We are not persuaded by these arguments. First, as discussed above,
Petitioner does not assert that Schmitt discloses the precise method used in
the Brochure, but that one of ordinary skill in the art would have looked to
Schmitt in order to successfully implement the Brochure’s method of
determining whether to slow a host vehicle in a curve. Pet. 22; Pet. Reply
18–19.
Second, we do not agree that Hulu precludes reliance on
“implementation details” as a reason to combine one or more references.
In Hulu, the petitioner relied on the combination of O’Neil, Kao, and DeWitt
for one ground of unpatentability. Hulu, Paper 34 at 6. The Hulu petitioner
asserted that the combination of O’Neil and Kao disclosed every limitation
of the challenged claims, but “[t]o the extent Patent Owner contends Kao’s
teachings . . . are insufficiently specific, [an ordinarily skilled artisan] would
have found it obvious to refer to DeWitt for further implementation details.”
Id. at 15. The Hulu patent owner, however, did not subsequently challenge
the sufficiency of Kao’s teachings and instead called into question the
“stated motivation for combining Kao with O’Neil.” Id. Thus, the question
of petitioner’s reliance on DeWitt for implementation details was not
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addressed in Hulu. Nor are we directed to any case law or reasoning that
would preclude reliance on “implementation details” as a reason to combine
two or more prior art references.
In view of the foregoing, we determine that Petitioner has
demonstrated that the Brochure and Schmitt teach or suggest every
limitation of claim 4 of the ’475 patent and that Petitioner sufficiently
explains why one of ordinary skill in the art would have sought to implement
Schmitt’s method of determining the vehicle’s position in a curve in the
combined system of the Brochure and Schmitt. Thus, Petitioner has
demonstrated by a preponderance of the evidence that claim 4 would have
been obvious over the combined disclosures of the Brochure and Schmitt.
6. Analysis: Claim 5
Claim 5 depends from claim 1 and further requires that the step of
reducing vehicle speed includes “a step of reducing the speed if the vehicle
lateral acceleration exceeds a predetermined limit.” Ex. 1001, 8:32–34.
The Brochure’s DSC system monitors a “stream of data” from the
sensors, and when it “detects a deviation between the vehicle’s current
operational status and the reference data it enters its active mode, with
intervention both through the brake system and engine management.”
Pet. 23 (citing Ex. 1007, 25; Ex. 1003 ¶ 57). Petitioner contends a person of
skill in the art would understand that the Brochure’s “reference data” “is the
same as a predetermined limit” and that the Brochure therefore reduces
speed when the vehicle’s lateral acceleration exceeds a predetermined limit.9
Id. (citing Ex. 1003 ¶ 57).

9 Petitioner and Dr. Eskandarian do not contend that Schmitt discloses this
claim limitation. Pet. 23; Ex. 1003 ¶ 57; Pet. Reply 19–20; Ex. 1009 ¶¶ 88–
89.
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Patent Owner contends the cruise control system of the Brochure
reduces speed based on only one factor—detection of a slower vehicle in the
same lane—and there is no disclosure in the Brochure of reducing vehicle
speed when lateral acceleration exceeds a predetermined limit. PO Resp. 53
(citing Ex. 1007, 21; Ex. 2003 ¶ 126). Patent Owner further asserts that
Petitioner’s argument that “reference data” is the same as a predetermined
limit is “both incorrect and completely without support.” Id. at 54.
According to Patent Owner, if reference data is the same as a predetermined
limit, then the Brochure’s disclosure could be read as implementing braking
“[w]hen the DSC detects a deviation between the vehicle’s current
operational status and the [predetermined limit.]” Id. at 55. Thus, even
when driving on a straight road with zero lateral acceleration, the vehicle
would have a “lateral acceleration that deviates from the predetermined
limit,” and the DSC could unnecessarily apply the vehicle’s brakes. Id.
(citing Ex. 2003 ¶ 129).
In response, Petitioner contends one of ordinary skill in the art would
have understood that the Brochure’s “reference data” includes, or is, a
predetermined limit and that when the current operational status—including
the vehicle’s lateral acceleration—exceeds this limit, the brake system will
intervene and reduce the vehicle’s speed. Pet. Reply 19 (citing Ex. 1009
¶ 88; Ex. 1011, 69).
Patent Owner counters that the argument that reference data includes
or is a predetermined limit that, if exceeded, would cause a reduction in
speed was not made in the Petition. Sur-reply 9 (citing Pet. Reply 19).
The Brochure discloses monitoring a stream of data that includes yaw
rate, curve radius (calculated using the lateral acceleration rate), the
vehicle’s speed, steering wheel angle, and pressure applied to the brake
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pedal, and uses this information to determine the vehicle’s current dynamic
status. Ex. 1007, 25. If that dynamic status deviates from reference data
stored in the DSC computer, the brake system may be activated. Id. The
Brochure does not indicate, however, what sensor data the reference data or
limits are directed to. Nor does the Brochure disclose that the magnitude of
lateral acceleration (as required by claim 5), as opposed to the vehicle’s
lateral acceleration rate, is used at all in the determination of a vehicle’s
dynamic status.
Dr. Eskandarian’s testimony on this point is conclusory and does not
explain adequately why one of ordinary skill in the art would have
concluded that there is a predetermined limit on lateral acceleration from the
fact that the Brochure uses lateral acceleration rate to calculate curve radius.
Ex. 1009 ¶¶ 85–89. In contrast, Dr. Shaver persuasively testifies that the
DSC takes into account road conditions as well as other variables that are
being monitored, and will only stabilize the vehicle when all of these
combined variables indicate that the DSC “needs to stabilize the vehicle.”
Ex. 2003 ¶ 132. And because all of the reference data collected, including
yaw rate, vehicle speed, and steering angle, would be considered when
deciding whether the dynamic status deviates from the DSC’s reference data,
Dr. Shaver testifies that there is no predetermined limit for lateral
acceleration in the Brochure. Id. We credit this testimony and find that
Petitioner has not demonstrated sufficiently that the Brochure teaches or
suggests reducing the speed of a vehicle if the lateral acceleration exceeds a
predetermined limit. Id. ¶ 133.
In view of the foregoing, Petitioner has not demonstrated by a
preponderance of the evidence that claim 5 would have been obvious over
the Brochure and Schmitt.
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7. Conclusion with Respect to Claims 1, 4, and 5
For the reasons set forth above, Petitioner has demonstrated by a
preponderance of the evidence that claims 1 and 4 of the ’475 patent would
have been obvious over the Brochure and Schmitt. Petitioner has not
demonstrated by a preponderance of the evidence, however, that the subject
matter of claim 5 would have been obvious over this set of prior art
references.
E. Claims 2 and 3 over the Brochure, Schmitt, and Ishizu
Claim 2 depends from claim 1 and further requires that the step of
determining whether a vehicle is in a turn includes the steps of “measuring
the vehicle speed,” “measuring a vehicle yaw rate,” and “measuring a rate of
change in the vehicle yaw rate.” Ex. 1001, 8:20–24. Claim 3 depends from
claim 2 and further requires that the step of “determining” includes “a step
of utilizing speed data corresponding to the vehicle speed, yaw rate data
corresponding to the vehicle yaw rate, and yaw rate of change data
corresponding to the [rate] of change in the vehicle yaw rate.” Id. at 8:25–
29.
Petitioner contends the subject matter of claims 2 and 3 would have
been obvious over the combined disclosures of the Brochure, Schmitt, and
Ishizu.
1. Ishizu
Ishizu discloses a system that maintains the lateral acceleration of a
vehicle below a preset value. Ex. 1005 ¶ 3. Ishizu’s vehicle control system
includes a lateral acceleration sensor, a vehicle speed sensor, a target vehicle
speed setting device, a drive system, and a connected controller. Id. at
Abstract.
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In operation, Ishizu’s system obtains the vehicle’s lateral acceleration,
or “lateral-G,” in one of two ways. First, lateral-G may be calculated using,
among other things, steer angle and vehicle speed. Id. ¶¶ 31–32 (disclosing
the use of “wheelbase dimension of the vehicle,” “steering gear ratio,” and a
“stability factor” in the calculation). Second, lateral-G may be obtained by
“using a yaw-rate sensor and processing the yaw rate ψ(t) by means of a
low-pass filter (LPF)” and vehicle speed. Id. ¶¶ 29, 33–34.
2. Analysis
Petitioner contends one of ordinary skill in the art would have
understood that calculating lateral acceleration using vehicle speed and yaw
rate “would lead to higher confidence” in the Brochure’s ACC system
“knowing the vehicle lateral acceleration.” Pet. 26 (citing Ex. 1003 ¶ 63).
Thus, Petitioner and Dr. Bohannon conclude that an ordinarily skilled artisan
would have sought to use Ishuzu’s method of calculating lateral acceleration
using vehicle speed and yaw rate in the Brochure to “check the accuracy of
the lateral acceleration” used by the Brochure’s system. Id. at 26–28 (citing
Ex. 1003 ¶ 63).
During prosecution, the applicants overcame a pending rejection in
light of the fact that directly measuring lateral acceleration using a lateral
acceleration sensor is more reliable than calculating lateral acceleration
using yaw rate. Ex. 2003 ¶ 141 (citing Ex. 1002, 197–198). Petitioner does
not persuasively address this argument or explain why using yaw rate in
addition to a lateral acceleration sensor would lead to higher confidence in
the measured lateral acceleration. Id. ¶ 140 (Dr. Shaver noting that
Petitioner and Dr. Eskandarian do not explain why calculating lateral
acceleration would lead to higher confidence in the lateral acceleration
measured by the sensor).
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Petitioner also does not explain sufficiently how a “higher
confidence” in the measured vehicle lateral acceleration would impact the
behavior of the system in any way. For example, Petitioner does not explain
how the system of the Brochure and Ishuzu would react if the two
measurements of lateral acceleration are the same or how the combined
system would handle a discrepancy between the calculated lateral
acceleration and that measured by the sensor. Ex. 1003 ¶ 63; Ex. 2003
¶ 140; PO Resp. 42–43 (citing Ex. 1002, 197–198), 59; Sur-reply 3;
Tr. 58:1–15. Accordingly, we find that Petitioner has not presented a
persuasive explanation as to why one of ordinary skill in the art would seek,
in the combined system of the Brochure, Schmitt, and Ishizu, to both
measure lateral acceleration using a lateral acceleration sensor and also
confirm this value by calculating lateral acceleration using vehicle speed and
yaw rate.10 Ex. 2003 ¶ 140.
Claim 2 also requires determining whether a vehicle is in a turn by
measuring a rate of change in the vehicle yaw rate. Ex. 1001, 8:24.
Although the Petition concedes that Ishizu only uses yaw rate to calculate
the magnitude of lateral acceleration, it contends one of ordinary skill in the
art would have been able to determine the rate of change in vehicle yaw rate
from the measured yaw rate “with minimal difficulty” and “would have been
motivated to do this to calculate a lateral acceleration rate, as opposed to the
magnitude of lateral acceleration at a given time.” Pet. 27, 38–39. As noted

10 Embodiments of the ’475 patent consider a combination of lateral
acceleration from a sensor, the change in measured lateral acceleration,
vehicle speed, yaw rate, and the rate of change of yaw rate. Ex. 1001, 8:15–
16, 8:20–24. But this is to predict whether the vehicle is in a turn and to
estimate the path of the vehicle, not to confirm that the lateral acceleration
data from the sensor is accurate. Id. at 6:1–11, 6:44–56.
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in the Institution Decision, however, the Petition provides no reason why
one of ordinary skill in the art would have wanted to calculate the lateral
acceleration rate from vehicle velocity and yaw rate. Inst. Dec. 21. That it
is easy to do, is not a persuasive reason to do so. See Personal Web Techs.,
LLC v. Apple, Inc., 848 F.3d 987, 993–94 (Fed. Cir. 2017) (noting that it is
not enough to show two references could be combined; a petitioner must
explain why one of ordinary skill would have been motivated to make the
combinations or modifications of prior art to arrive at the claimed invention)
(citing Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1073 (Fed. Cir. 2015)).
In its reply, Petitioner contends one of ordinary skill in the art would
have sought to calculate lateral acceleration rate using the change in yaw
rate in order to increase confidence in the Brochure’s detected rate of change
of vehicle lateral acceleration. Pet. Reply 21 (citing Ex. 1003 ¶ 65; Ex. 1009
¶ 95; Ex. 1011, 76, 96–97, 107). We are not persuaded by this argument for
two reasons. First, it comes too late. The Petition and Dr. Eskandarian’s
first declaration provide no reasoned explanation as to why one of ordinary
skill in the art would have wanted to calculate a lateral acceleration rate
using a change in yaw rate when such data is already available from a lateral
acceleration sensor. A reply brief is not the proper vehicle to provide such
an explanation in the first instance. See Consolidated Trial Practice Guide
73 (noting that a Petitioner may not submit new evidence or argument in
reply “to make out a prima facie case of unpatentability”); Sur-reply 2–3
(noting that the Petition’s discussion of Ishizu with respect to claims 2, 3,
and 7 “never mentions the Brochure’s detected change in lateral
acceleration, much less a motivation for additionally calculating the change”
in lateral acceleration using the change in yaw rate).
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Second, as noted above with respect to lateral acceleration, Petitioner
does not explain persuasively why confirming the lateral acceleration rate
using the rate of change in yaw rate would have been beneficial or desirable
in the system of the Brochure, which already measures lateral acceleration
using the more reliable lateral acceleration sensor.11 Ex. 1002, 197–198.
In view of the foregoing, we determine that Petitioner has not
demonstrated by a preponderance of the evidence that claim 2 would have
been obvious over the Brochure, Schmitt, and Ishizu. As Petitioner’s
arguments for claim 3 are identical to its arguments with respect to claim 2,
Petitioner has also not demonstrated by a preponderance of the evidence that
claim 3 would have been obvious over the Brochure, Schmitt, and Ishizu.
F. Claims 6, 8, and 9 over the Brochure and Schmitt
Petitioner contends the subject matter of claims 6, 8, and 9 would
have been obvious over the combined disclosures of the Brochure and
Schmitt. Pet. 28–37.
1. Analysis: Claim 6
Petitioner’s arguments with respect to independent claim 6 generally
follow its arguments for independent claim 1. Pet. 28–35. In particular,
Petitioner contends the Brochure expressly discloses operating a vehicle in
an adaptive cruise control mode (Pet. 30 (citing Ex. 1007, 21; Ex. 1003 ¶
72)), measuring a lateral acceleration from a lateral acceleration sensor (id.

11 To the extent Petitioner is correct that one of ordinary skill in the art
would have sought to confirm the accuracy of the Brochure’s lateral
acceleration sensor using vehicle yaw rate, it is not evident why such a
skilled artisan would then also seek to confirm that the lateral acceleration
rate derived from the sensor is accurate using a calculated rate of change in
yaw rate. The accuracy of the sensor would have already been confirmed
using the previous yaw rate calculation.
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at 30–31 (citing Ex. 1007, 21; Ex. 1003 ¶ 73)), detecting a change in vehicle
lateral acceleration based on a change in the measured lateral acceleration
(id. at 31 (citing Ex. 1007, 21, 24; Ex. 1003 ¶¶ 74)), determining the vehicle
path based on the detected change in the vehicle’s lateral acceleration (id. at
31–32 (citing Ex. 1007, 21, 24; Ex. 1003 ¶ 75), and monitoring for objects,
detecting a location of an object, determining whether the location of the
object is within the vehicle’s path, and reducing speed based on the location
of the object (id. at 32–33 (citing Ex. 1007, 21; Ex. 1003 ¶¶ 76–77)).
Petitioner again concedes that the Brochure does not explicitly
disclose “when the vehicle is determined to be in the turn, reducing the
vehicle speed according to that determination” but contends that one of
ordinary skill in the art would have been motivated to implement such a
system based on Schmitt. Pet. 33–35 (citing Ex. 1007, 21; Ex. 1003 ¶¶ 78–
80; Ex. 1004, 2:59-62, 3:28-37, 4:38-39, 4:41-5:11, Claim 3).
Patent Owner applies the same counterarguments it directed to claim 1
to claim 6, i.e., that the Brochure does not disclose a lateral acceleration
sensor (PO Resp. 43–46), the Brochure does not disclose detecting a change
in vehicle lateral acceleration based on a change in the measured lateral
acceleration (id. at 46–49), and Petitioner has failed to show that one of
ordinary skill in the art would have sought to combine the Brochure and
Schmitt to arrive at the invention recited in claim 6 (id. at 16–36).
Upon review of Petitioner’s and Patent Owner’s arguments and
supporting evidence, we find that Petitioner has demonstrated sufficiently
that the Brochure and Schmitt disclose every limitation of claim 6. And for
the reasons discussed above with respect to claim 1, we find persuasive
Petitioner’s argument that one of ordinary skill in the art would have sought
to implement Schmitt’s method of reducing vehicle speed based on a
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determination that a vehicle is in a turn in the combined system of the
Brochure and Schmitt. Thus, Petitioner has demonstrated by a
preponderance of the evidence that claim 6 would have been obvious over
the Brochure and Schmitt.12
2. Analysis: Claim 8
Claim 8 depends from claim 6 and further requires “a step of
determining the vehicle’s position within the turn.” Ex. 1001, 8:57–58. In
support of their arguments regarding claim 8, the parties reassert their
previous arguments set forth for claim 4. Pet. 21–22, 35–36; PO Resp. 49–
53. Thus, for the reasons discussed above with respect to claim 4 (Section
II.D.5), we determine that Petitioner has demonstrated by a preponderance
of the evidence that claim 8 would have been obvious over the Brochure and
Schmitt.
3. Analysis: Claim 9
Claim 9 depends from claim 8 and further requires that “said step of
reducing the vehicle speed includes a step of reducing the vehicle speed if
the vehicle lateral acceleration exceeds a predetermined limit.” Ex. 1001,
8:59–61.
The parties asserts the same arguments for claim 9 that they assert for
claim 5. Pet. 23, 36–37; PO Resp. 49–53. Thus, for the reasons discussed
above with respect to claim 5 (Section II.D.6), we determine that Petitioner

12 Petitioner does not provide an express reason to combine the Brochure and
Schmitt in its discussion of claim 6. We understand this to be because
Petitioner already explained in its discussion of claim 1 why one of ordinary
skill in the art would have sought to combine the same identified
functionality of Schmitt (reducing speed based on a determination that the
vehicle is in a turn) with the Brochure, i.e., to avoid a loss of control in a
turn. Tr. 24:26–25:5.
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has not demonstrated by a preponderance of the evidence that claim 9 would
have been obvious over the Brochure and Schmitt.
G. Claim 7 over the Brochure, Schmitt, and Ishizu
Petitioner contends the subject matter of claim 7 would have been
obvious over the combined disclosures of the Brochure, Schmitt, and Ishizu.
Pet. 37–39.
The parties asserts the same arguments for claim 7 as they assert for
claim 2. Id.; PO Resp. 40–43, 58–60. Thus, for the reasons discussed above
with respect to claim 2 (Section II.E.2), we determine that Petitioner has not
demonstrated by a preponderance of the evidence that claim 7 would have
been obvious over the Brochure, Schmitt, and Ishizu.
H. Claims 10–12 over the Brochure, Schmitt, and Khodabhai
Petitioner contends the subject matter of claims 10–12 would have
been obvious over the combined disclosures of the Brochure, Schmitt, and
Khodabhai. Pet. 39–47.
1. Khodabhai
Khodabhai discloses a “vehicle collision avoidance system which
determines whether an obstacle lies in the path of a host vehicle.” Ex. 1006,
1:9–13. In one embodiment of Khodabhai, the determination as to whether
an obstacle is in the host vehicle’s path of travel is based on output data from
one or more collection devices. Id. at 2:41–44. These devices may include
“a radar system, a rate of turn indicator, and other instruments mounted to
the host vehicle, such as a speedometer or tachometer.” Id. at 2:43–47.
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Figure 2 of Khodabhai is reproduced below:

Figure 2 is a plan view illustrating the manner in which the radar system of
Khodabhai determines off-boresight deviation and range of a target. Id. at
3:44–47. In Figure 2, host vehicle 111 uses radar beam 218 to track
obstacles. Id. at 4:36–38. Radar beam 218 includes a zero-degree reference
azimuth 202 extending along the center boresight and “provides a
continuous indication of the azimuth of the vehicle 220 with respect to the
reference azimuth 202, as well as indications as to the range 208 and the
relative motion of the vehicle 220 with respect to the host vehicle 111.” Id.
at 4:34–45.
Khodabhai explains that in one embodiment,
[i]nitially, the outputs from the collection devices are used to
determine the host vehicle’s velocity, average turn rate, the
radius of curvature of the path being traveled, the relative
velocity and range of any detected obstacles, and an obstacle
azimuth angle, i.e., the deviation of an obstacle from a zero-
degree (0º) reference azimuth co-incident with the longitudinal
axis of the host, which is preferably the boresight of the radar
systems. The obstacle azimuth angle is combined with the rate
of turn information to determine whether or not the obstacle is
in the path of the host vehicle.
Id. at 2:47–56.
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2. Analysis: Claim 10
Claim 10 depends from claim 6 and further requires that the step of
detecting includes the steps of measuring object range, measuring object
range rate, measuring object angle, and determining the radius of curvature
of the vehicle’s path. Ex. 1001, 8:62–9:2; Pet. 40–46.
Petitioner contends Khodabhai discloses measuring an object range
(Pet. 43–44 (citing Ex. 1006, 2:48–51; Ex. 1003 ¶ 98)), azimuth obstacle
angle (id. at 45 (citing Ex. 1006, 4:48–53; Ex. 1003 ¶ 100)), and the radius
of curvature of the vehicle’s path (id. at 45–46 (citing Ex. 1006, Fig. 6)).
Petitioner further contends that, because Khodabhai detects the range and
relative velocity of any obstacle, it is “mere math to work out an object
range rate at any given time.” Id. at 44 (citing Ex. 1006, 2:48–51; Ex. 1003
¶ 99). Accordingly, Petitioner concludes that Khodabhai teaches every
limitation of claim 10.
Patent Owner asserts the Petition does not demonstrate that
Khodabhai actually measures an object range rate or explain why a person of
ordinary skill in the art would have sought to calculate and use object range
rate in the Brochure or Khodabhai. PO Resp. 39, 60 (citing Pet. 44;
Ex. 2003 ¶ 175).
In reply, Petitioner asserts that Patent Owner “fails to comprehend
that no motivation is needed to obtain the object range rate” as “it is part of
and already disclosed by ‘the relative velocity’ in Khodabhai.”
Pet. Reply 21. Petitioner further asserts that one of ordinary skill in the art
would have sought to use Khodabhai’s method of “using the object’s range,
the object’s range rate, the object angle in relation to the vehicle, and the
radius of curvature of the vehicle’s path” to determine the position and speed
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37
of the preceding vehicle or object. Id. at 10 (citing Pet. 43–44; Ex. 1003
¶¶ 97–98).
Khodabhai determines a target vehicle’s range and relative velocity.
Ex. 1006, 2:50, 4:44–45. We are directed to no disclosure in Khodabhai,
however, of measuring, calculating, or using object range rate in its
calculations or algorithms. See id. at 2:43–56. Indeed, in both the Petition
and the Reply, Petitioner concedes that object range rate must be calculated
from the information obtained by Khodabhai’s sensors. Pet. 44 (“If a person
of skill knew the relative range and velocity of an object, it is mere math to
work out an object range rate at any given time.”); Pet. Reply 21–22; Ex.
1009 ¶ 101 (Dr. Eskandarian testifying in support of Petitioner’s Reply that
“only ‘mere math’ is needed” to obtain an object range rate in Khodabhai).
Thus, Petitioner has not carried its burden to demonstrate by a
preponderance of the evidence that Khodabhai teaches or suggests
“measuring object range rate,” as recited in claim 10.
Nor has Petitioner carried its burden to explain why one of ordinary
skill in the art would have sought to measure or calculate object range rate in
Khodabhai or the combined system of Kohdabhai and the Brochure, even if
this quantity can easily be calculated from Khodabhai’s existing data using
“mere math.” Sur-reply 9–10; Ex. 2003 ¶¶ 174–176. Instead, Petitioner
merely assumes without explanation that Khodabhai uses “the object’s range
rate” in its method, a conclusion that is in direct conflict with
Dr. Eskandarian’s declaration testimony. Compare Pet. Reply 10 with Ex.
1009 ¶¶ 97–98 (Dr. Eskandarian testifying that object range rate must be
derived from the relative velocity measured in Khodabhai); Sur-reply 9–10
(asserting that there is “no way to square” Petitioner’s reply arguments with
the Petition).
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In view of the foregoing, we are not persuaded that Petitioner has
demonstrated by a preponderance of the evidence that claim 10 would have
been obvious over the Brochure, Schmitt, and Khodabhai. Claims 11 and 12
depend, directly or indirectly from claim 10, and Petitioner’s arguments with
respect to these claims do not resolve the deficiencies discussed above with
respect to claim 10. Accordingly, Petitioner has not demonstrated by a
preponderance of the evidence that claims 11 and 1213 would have been
obvious over the Brochure, Schmitt, and Khodabhai.
III. CONSTITUTIONAL CHALLENGES
Patent Owner asserts adjudication of the challenged patent violates the
United States Constitution because (1) subjecting a pre-AIA patent to IPR
proceedings is “an impermissibly retroactive, unconstitutional taking” that
“unfairly interferes” with Patent Owner’s “reasonable investment-backed
expectations without just compensation”; and (2) “IPR violates the
Appointments Clause.” PO Resp. 62–63.
We decline to consider Patent Owner’s arguments in view of the
Federal Circuit’s decisions in Celgene Corp. v. Peter, 931 F.3d 1342, 1358–
63 (Fed. Cir. 2019) (addressing takings arguments) and Arthrex v. Smith &

13 Although our resolution of the challenge to claim 10 also resolves the
challenge to claims 11 and 12, we note that Petitioner’s obviousness
arguments with respect to claim 12 span only two sentences and merely
direct our attention to Petitioner’s arguments made with respect to claims 10
and 11. Pet. 47 (citing to “Section V.E.1” and “V.E.3”). This challenge to
claim 12 is deficient under a preponderance of the evidence standard
because (1) Petitioner does not explain in the Petition how its arguments
with respect to claims 10 and 11 apply to claim 12 and (2) Petitioner’s reply
arguments come too late, as a prima facie case must be made out in the
Petition, not for the first time in reply.
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Nephew, 947 F.3d 1320, 1337–38 (Fed. Cir. 2019) (addressing an
appointments clause challenge).
IV. CONCLUSION
After reviewing the arguments and evidence of record, we determine
that Petitioner has shown by a preponderance of the evidence that claims 1,
4, 6, and 8 are unpatentable. Petitioner has not shown, however, that
challenged claims 2, 3, 5, 7, and 9–12 are unpatentable.
In summary:
V. ORDER14
In consideration of the foregoing, it is hereby:
ORDERED that claims 1, 4, 6, and 8 of U.S. Patent No. 7,512,475 B2
are determined to be unpatentable;

14 Should Patent Owner wish to pursue amendment of the challenged claims
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
Claims

35
U.S.C. §
Reference(s)/Basis Claims
Shown
Unpatentable
Claims
Not shown
Unpatentable
1, 4, 5 103 Brochure, Schmitt 1, 4 5
2, 3 103 Brochure, Schmitt,
Ishizu
2, 3
6, 8, 9 103 Brochure, Schmitt 6, 8 9
7 103 Brochure, Schmitt,
Ishizu
7
10–12 103 Brochure, Schmitt,
Khodabhai
10–12
Outcome 1, 4, 6, 8 2, 3, 5, 7, 9–
12
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FURTHER ORDERED that claims 2, 3, 5, 7, and 9–12 have not been
shown to be unpatentable;
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.

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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FOR PETITIONER:
Lionel Lavenue
Cory Bell
Michael Su
Nicholas Doyle
FINNEGAN, HENDERSON, FARABOW,
GARRETT, & DUNNER LLP
lionel.lavenue@finnegan.com
cory.bell@finnegan.com
michael.liu.su@finnegan.com
nicholas.doyle@finnegan.com

FOR PATENT OWNER:
Sarah E. Spires
SKIERMONT DERBY LLP
sspires@skiermontderby.com