Traeger Pellet Grills, LLC

Patent Trials and Appeals Board

Aug 31, 2020

PGR2019-00034 (P.T.A.B. Aug. 31, 2020)

Trials@uspto.gov Paper No. 34
571-272-7822 Entered: August 31, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

GMG PRODUCTS LLC,
Petitioner,

v.

TRAEGER PELLET GRILLS LLC,
Patent Owner.
____________

PGR2019-00034
Patent 10,218,833 B2
____________

Before JAMESON LEE, DEBRA K. STEPHENS, and JOSIAH C. COCKS,
Administrative Patent Judges.

COCKS, Administrative Patent Judge.

JUDGMENT
Final Written Decision
Determining No Challenged Claims Unpatentable
35 U.S.C. § 328(a)
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INTRODUCTION
We have authority to hear this post-grant review under 35 U.S.C.
§ 6(c) and to issue this Final Written Decision pursuant to 35 U.S.C.
§ 328(a). For the reasons that follow, after reviewing all relevant evidence
and arguments, we determine that GMG Products LLC (“Petitioner”) has not
shown by a preponderance of the evidence that claims 1–10 of U.S. Patent
No. 10,218,833 B2 (Ex. 1001, “the ’833 patent”) are unpatentable.
Background
Petitioner filed a Petition (Paper 3, “Pet.”) requesting a post-grant
review of claims 1–10 of the ’833 patent.1 Traeger Pellet Grills LLC
(“Patent Owner”) timely filed a Preliminary Response (Paper 7) to the
Petition. In response to our Order (Paper 8) authorizing filing of a Petitioner
reply and a Patent Owner sur-reply, Petitioner filed a Reply to Patent
Owner’s Preliminary Response (Paper 9) and Patent Owner filed a Sur-
Reply (Paper 11). Pursuant to 35 U.S.C. § 324(a) and 37 C.F.R. § 42.4(a),
we instituted this post-grant review based on our decision that Petitioner had
demonstrated a reasonable likelihood of prevailing as to at least one of the
challenged claims of the ’833 patent. Paper 13 (“Inst. Dec.”).
Patent Owner filed a Patent Owner Response. Paper 17 (“PO Resp.”).
Petitioner filed a Petitioner’s Reply to Patent Owner’s Response. Paper 23

1 Petitioner also filed a Petition, concurrently with the present Petition,
challenging claims 11–25 of the ’833 patent. See IPR2019-00035. A Final
Written Decision in that proceeding is issued concurrently with this
Decision.
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(“Pet. Reply”). Patent Owner filed a Sur-Reply in response to Petitioner’s
Reply. Paper 26 (“PO Sur-Reply”).
At the parties’ request (Papers 24, 25), an Oral Hearing was held on
June 9, 2020, a transcript of which is included in the record. Paper 32
(“Tr.”).2
Real Parties in Interest
Petitioner identifies GMG Products LLC as its real party-in-interest.
Pet. 3. Patent Owner identifies Traeger Pellet Grills, LLC as its real party-
in-interest. Paper 5, 2.
The ’833 Patent
The ’833 Patent is titled “Mobile Application for Controlling Outdoor
Grill” and issued February 26, 2019. Ex. 1001, codes (54), (45). The ’833
Patent describes computing systems for use in remote cooking in which a
“software application is configured to control the electronically-controlled
appliance.” Id. at (57). Figure 1 of the ’833 patent is reproduced below.

2 Judge Lee replaced Judge Zado on the panel after the Oral Hearing was
conducted. See Paper 33.
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Figure 1 above “illustrates a computer architecture in which
embodiments described herein may operate including controlling an
electronically-controlled appliance using a software application and
providing a user interface for controlling an electronically-controlled
appliance.” Ex. 1001, 2:63–67. Environment 100 includes computer system
101. Id. at 5:36–41. Computer system 101 may be a “mobile computer
system” that is configured to communicate with remote computing systems
113, such as cloud computer systems, and electronically-controlled
appliance 115, including a grill or smoking appliance. Id. at 5:56–6:6.
Electronic hardware controller 116 may be configured to monitor and
control such aspects of appliance 115, such as temperature, cooking cycles,
and fuel burn rate based on a communication from computer 101 or remote
computer systems 113. Id. at 6:8–15.

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Figure 2 of the ’833 patent is reproduced below.

Figure 2 above “illustrates an embodiment in which an electrically-
controlled appliance is in communication with a cloud service and a mobile
electronic device.” Id. at 3:1–3. In Figure 2, smoker 202 is controlled via
smart phone 203 that is in communication with cloud service 201. Id. at
7:20–24.
The Claims
Of the challenged claims, claim 1 is independent. Claims 2–10
ultimately depend from claim 1. Claim 1 is reproduced below:
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1. A method for controlling an electronically-controlled
wood-pellet grill using a software application on a mobile device,
the electronically-controlled wood-pellet grill having at least one
hardware controller, the method comprising:
receiving an indication from one or more remote
computing systems indicating that the electronically-controlled
wood-pellet grill is communicably connected to the one or more
remote computing systems, wherein the one or more remote
computing systems comprise a cloud service;
providing a notification in the software application
indicating that the electronically-controlled wood-pellet grill is
available to receive instructions;
receiving a user input at the software application
indicating that a particular temperature is to be maintained by the
electronically-controlled wood-pellet grill;
generating one or more instructions configured to cause a
hopper to feed wood pellets into the electronically-controlled
wood-pellet grill at a particular rate in order to maintain the
particular temperature; and
sending the generated instructions to the electronically-
controlled wood-pellet grill to activate the hopper, the generated
instructions being interpreted and carried out on the
electronically-controlled wood-pellet grill via the hardware
controller.
Ex. 1001, 13: 34–59.
Evidence
Petitioner relies upon the following references in asserting that the
challenged claims are unpatentable:
Reference Publication Number Exhibit
Lee et al. (“Lee”) US 2015-0134727 A1 1003
Tucker (“Tucker”) US 9,759,429 B2 1004
Henderson et al. (“Henderson”) US 2015-0025687 A1 1005
Amer et al. ( “Amer”) US 2016/0072638 A1 1006
Jablokov et al. (“Jablokov”) US 9,928,672 B2 1007
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Petitioner supports its challenge with a Declaration by Dr. Henry H.
Houh, dated February 26, 2019 (Ex. 1002) and a Supplemental Declaration
of Dr. Houh, dated March 13, 2020 (Ex. 1046). Patent Owner supports its
Response with a Declaration by Mr. Daniel Minoli (Ex. 2006) and a
Declaration by Mr. James M. Tomaszewski (Ex. 2007).
The Proposed Grounds of Unpatentability
Petitioner challenges claims 1–10 of the ’833 patent on the following
grounds:
Ground Claim(s) Basis References
1 1–2, 6–10 § 103 Lee, Tucker, Henderson
2 3, 5 § 103 Lee, Tucker, Henderson, Amer
3 4 § 103 Lee, Tucker, Henderson,
Jablokov
ANALYSIS
A. Claim Construction
We construe the claims “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), including construing the claim in accordance with the ordinary
and customary meaning of such claim as understood by one of ordinary skill
in the art and the prosecution history pertaining to the patent” 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));
Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005).
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Neither party offers any proposed constructions for any claim terms.
See Pet. 37–38; PO. Resp. 19. Specifically, Petitioner indicates “that no
claim terms require construction” and that “[e]ach claim term should be
given its plain and customary meaning as understood by one of ordinary
skill in the art.” Pet. 37 (citing Ex 1002 ¶115). Patent Owner also indicates,
“[f]or purposes of this Patent Owner Response, . . . no claim construction is
necessary[.]” PO Resp. 19. On this record and for purposes of this decision,
we determine no claim term requires express construction. See Nidec Motor
Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed.
Cir. 2017) (citing Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795,
803 (Fed. Cir. 1999)).
B. Legal Standards
Petitioner challenges the patentability of claims 1–10 on the grounds
that the claims would have been obvious in light of various references
including: Lee, Tucker, Henderson, Amer, and Jablokov. To prevail in its
challenges to the patentability of the claims, Petitioner “has the burden of
proving a proposition of unpatentability by a preponderance of the
evidence.” 35 U.S.C. § 326(e) (2018); see 37 C.F.R. § 42.1(d) (2019).
The Supreme Court in KSR International Co. v. Teleflex Inc., 550
U.S. 398 (2007), reaffirmed the framework for determining obviousness as
set forth in Graham v. John Deere Co., 383 U.S. 1 (1966). The KSR Court
summarized the four factual inquiries set forth in Graham that we apply in
determining whether a claim is unpatentable as obvious under 35 U.S.C.
§ 103(a) as follows: (1) determining the scope and content of the prior art,
(2) ascertaining the differences between the prior art and the claims at issue,
(3) resolving the level of ordinary skill in the pertinent art, and
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(4) considering objective evidence indicating obviousness or non-
obviousness. KSR, 550 U.S. at 406 (citing Graham, 383 U.S. at 17–18).
“To satisfy its burden of proving obviousness, a petitioner cannot employ
merely conclusory statements. The petitioner must instead articulate
specific reasoning, based on evidence of record, to support the legal
conclusion of obviousness.” In re Magnum Oil Tools Int’l, Ltd., 829 F.3d
1364, 1380–81 (Fed. Cir. 2016) (citing KSR, 550 U.S. at 418). We consider
the asserted grounds based on obviousness with the principles identified
above in mind.
C. Level of Ordinary Skill in the Art
The level of skill in the art is a factual determination that provides a
primary guarantee of objectivity in an obviousness analysis. Al-Site Corp. v.
VSI Int’l Inc., 174 F.3d 1308, 1324 (Fed. Cir. 1999) (citing Graham v. John
Deere Co., 383 U.S. 1, 17–18 (1966). Petitioner asserts that a person of
ordinary skill in the art at the time of the invention “would have a [Bachelor
of Science] degree in Computer Science or an equivalent field, as well as at
least two years of academic or industry experience related to Internet
connectivity, Internet content delivery, and network applications, and user
application programming or web interface design, and familiarity with smart
home appliances.” Pet. 38 (citing Ex. 1002 ¶¶ 39–42).
Patent Owner argues that Petitioner’s “definition of a [person of
ordinary skill in the art] is incorrect because it does not account for the
context of the invention.” PO Resp. 20 (citing Ex. 2007 ¶¶ 34–37, 69–72).
According to the Patent Owner,
Properly considering the relevant factors in the field of
outdoor appliances like grills and smokers, the actual level of
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ordinary skill in the art at the time of the invention was a person
with a bachelor’s of science degree in mechanical engineering
(or technical degree with equivalent experience) and awareness
of appropriate methods for remotely controlling an outdoor
appliance.
Id. at 21 (citing Ex. 2007 ¶¶ 5–7, 40–68). Patent Owner, thus, is of the view
that a skilled artisan is particularly focused on control of outdoor appliances.
Patent Owner also contends that one of ordinary skill would view safety
concerns pertaining to outdoor cooking appliances as paramount. See, e.g.,
PO Sur-Reply 3–4.
Factors that may be considered in determining level of ordinary
skill in the art include: (1) the educational level of the inventor;
(2) type of problems encountered in the art; (3) prior art solutions
to those problems; (4) rapidity with which innovations are made;
(5) sophistication of the technology; and (6) educational level of
active workers in the field[.]
Daiichi Sankyo Co., Ltd. v. Apotex, Inc., 501 F.3d 1254, 1256 (Fed. Cir.
2007) (citations omitted). “These factors are not exhaustive but are merely a
guide to determining the level of ordinary skill in the art.” Id.
The ’833 patent, in its Background, discusses that “Bluetooth radios
allow communication with nearby electronic devices including cell phones
or tablets of the appliance’s owner.” Ex. 1001, 1:40–42. The ’833 patent
further describes that “[r]ange limitations to the Bluetooth radio, however,
necessitate that the user of the appliance still be within a certain proximity of
the appliance.” Id. at 1:42–44. Thus, it is apparent from the ’833 patent that
Bluetooth, a communications technology, was the prior art solution to
allowing communication with various electronic devices, including
appliances and cell phones. Additionally, the claims of the ’833 patent are
directed to communication between various elements including a cloud, a
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mobile device, transmitters, and receivers and the accompanying software
applications rather than matters pertaining to safety concerns of the grill.
We further observe that the ’833 patent describes the following:
[t]hose skilled in the art will appreciate that the principles
described herein may be practiced in network computing
environments with many types of computing system
configurations, including, personal computers, desktop
computers, laptop computers, message processors, hand-held
devices, multi-processor systems, microprocessor-based or
programmable consumer electronics, network PCs,
minicomputers, mainframe computers, mobile telephones,
PDAs, tablets, pagers, routers, switches, and the like.
Ex. 1001, 4:54–62. The ’833 patent also explains that those principles are
“practiced in a cloud computing environment.” Id. at 5:6–8. Therefore,
based on the record before us, we determine that the sophistication of the
technology of the ’833 patent is of a level requiring knowledge of computer
systems and, particularly, cloud computing environments communicating
with multiple devices.
Lastly, we note that Patent Owner relies on Mr. Minoli (Ex. 2006) as
its expert declarant in challenging the grounds of unpatentability. Mr.
Minoli indicates he is “a telecommunications practitioner with 44 years of
data communications, telecommunications, cloud computing, Internet,
wireless, and Internet of Things (IoT) experience.” Id. ¶ 9, Appendix A. Mr.
Minoli also sets forth that he has a Master of Science in Computer Science
and both a Bachelor and Master of Science in Mathematics. Id. at Appendix
A. Thus, in arguing the patentability of the disputed claims, Patent Owner
itself relies on a declarant having both a degree in Computer Science and at
least two years industry experience related to Internet connectivity, Internet
content delivery, and network applications.
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We have considered the record before us and determine that, it is
Petitioner’s description of an ordinarily skilled artisan that is better
supported by the record.3 However, we delete the qualifier
“at least” with regard to the number of years of academic or industry
experience, because its inclusion extends the level to that of an expert
beyond the level of ordinary skill. We note also that the applied prior art
reflects the appropriate level of skill at the time of the claimed invention.
See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001).
D. References Relied Upon
1. Overview of Lee
Lee is titled “Cloud-Based Data Server Providing Home Appliance
Management Service and Method Thereof,” and discloses a “cloud-based
data server providing a user of a terminal apparatus with a management
service for one or more home appliances” so that “the user of the terminal
apparatus may remotely monitor states of the home appliances or control
actions or operations of the home appliances in a home network system.”
Ex. 1003, codes (54), (57). Figure 1 of Lee, reproduced below, illustrates “a
system in which states of one or more home appliances 150 may be

3 Patent Owner does not contend that the parties’ disagreement as to level of
ordinary skill in the art would affect any determination in this Decision. See
id. at 21.
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monitored and functions or operations of the home appliances 150 may be
controlled, using a terminal apparatus 160 of a user.” Id. ¶ 55.

Figure 1 illustrates a system for monitoring and controlling home
appliances. Id. As shown, Lee’s “system for managing the home appliances
150” includes “cloud-based data server 110,” “terminal apparatus 160”
connected to “cloud-based data server 110,” and “home network system 120
connected to the [cloud-based] data server 110.” Id. ¶¶ 55–58. Further,
home network system 120 includes “home gateway 130” connected to home
appliances 150. Id. ¶¶ 58–59, 62. Terminal apparatus 160 monitors home
appliances 150 through metadata generated by the home appliances. Id.
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¶¶ 65–69. Figure 5, reproduced below, is a signal flow chart illustrating the
signals generated and transmitted to monitor home appliances.

Figure 5 illustrates signals transmitted between networked devices. Id.
¶ 47. Initially, “each of the home appliances 150 may generate
information . . . related to a current state of each home appliance.” Id. ¶ 175;
see id. ¶ 68. The “information generated by each home appliance may
correspond to metadata associated with each home appliance.” Id. ¶ 175. In
particular, “metadata includ[es] at least one piece of state information on a
state of each of the home appliances 150.” Id. ¶ 190; see id. ¶¶ 168, 204. In
operation 525, that metadata is transmitted from the home appliance to the
home gateway’s device subscription function module (DSFM). Id. ¶ 187.
Then, in operation 535, home gateway 130 “may transfer the metadata
from the home appliances 150 to . . . the data server 110.” Id. ¶ 194, Fig. 5;
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see id. ¶ 67. Next, in operation 545, data server 110’s monitoring service
module (MSM) “may receive, from the terminal apparatus 160, a request
signal with respect to the metadata.” Id. ¶ 201, Fig. 5. Subsequently, in
operation 555, “[the] data server 110’s M[S]M 245 may transfer the received
metadata to the terminal apparatus 160.” Id. ¶ 203, Fig. 5; see id. ¶ 66. As
discussed above, “[t]he metadata transferred to the terminal apparatus 160
may include information on states of the home appliances 150” (id. ¶ 203),
thus providing “a service for monitoring the home appliances 150 to the user
of the terminal apparatus 160” (id. ¶ 66).
2. Overview of Tucker
Tucker, a U.S. Patent titled “Pellet Grill,” discloses “an automated
self-contained pellet grill” that uses “compressed hardwood sawdust” as
cooking fuel. Ex. 1004, (54), (57), 1:19–20. Tucker further teaches that its
pellet grill includes “a communication device to exchange data wirelessly
with a remote control device.” Id. at 4:33–45.
3. Overview of Henderson
Henderson is titled “Remote-Controlled Food-Related Appliance,”
and discloses a “smoking appliance and [a] remote computing device . . . in
communication via [a] communication network” such that “a user of the
remote computing device controls the smoking appliance remotely.” Ex.
1005, codes (54), (57). Figure 1 of Henderson, reproduced below, illustrates
an example system in which “the smoking appliance 102 and remote
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computing device 104 are in communication via the communication network
106.” Id. ¶ 13.

Figure 1 illustrates a cooking system operating over a network. Id.
¶ 5. Henderson describes that, in one example, “the smoking appliance 102
is connected to the communication network 106. The communication
network 106 is, in turn, connected to the remote computing device 104.” Id.
¶ 16. Further, Henderson describes that its “smoking appliance 102
functions to, in any combination, cook, smoke, grill, bake, broil, blanch,
braise, roast or steam, food.” Id. ¶¶ 14–15.
4. Overview of Amer
Amer is titled “System and Method for Remotely Controlling IR-
Enabled Appliances via Networked Device,” and discloses a system that
“enables one or multiple users to control, monitor, and manage their
appliances (e.g., air conditioners, television sets, multimedia systems,
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window curtains, etc.) both locally and remotely.” Ex. 1006, codes (54),
(57). Figure 2 of Amer is reproduced below.

Figure 2 shows components and relationships between those
components for the remote control and monitoring of appliances. Id. ¶¶ 5,
49. In Figure 2, “electric appliances 20 denoted by reference numerals 21,
22, and 24” are associated with respective “cloud-enabled remote control
devices 10” (id. ¶¶ 49, 53) which control those electric appliances 20 via,
e.g., IR control signals (id. ¶ 41). Further, “[t]he cloud platform 50 acts as a
bridge between . . . [cloud-enabled remote control] devices 10, mobile
devices 60, and web applications 61.” Id. ¶ 50. “The user 30 can control,
monitor, and manage their . . . electric appliances 20” through cloud
platform 50’s network connection to the cloud-enabled remote control
devices 10. Id. ¶ 53.

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5. Overview of Jablokov
Jablokov is titled “System and Method of Monitoring and Controlling
Appliances and Powered Devices Using Radio-Enabled Proximity Sensing.”
Ex. 1007, code (54). Jablokov describes its invention as “providing optional
watchdog safety shutoff capabilities including an inline or remote monitor
and control system, radio awareness of compatible components such as
Bluetooth smartphones and dongles, and optional Internet connectivity for
remote monitoring, control, and usage data accumulation.” Id. at (57).
Jablokov contemplates various types of appliances that may be remotely
monitored and controlled including “outdoor grills.” Id. at 11:26–42.
Jablokov’s Figure 4C is reproduced below.

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Figure 4C above shows “an illustrative embodiment of a safety
monitoring and control implementation for monitoring and controlling the
operation state of a gas range.” Id. at 3:65–67. In connection with Figure
4C, Jablokov describes the following:
[G]as range 127 . . . is coupled to the monitor and control module
104, which is electrically coupled to an AC power socket 110 or
gas source connection 112. As previously described, the radio
proximity detection device 106 of the monitor and control
module 104 scans, e.g., using Bluetooth technology and the like,
in search for any authorized radio-enabled devices, such as
smartphones 108, within the pre-determined range.
Id. at 11:44–51.
E. Obviousness Under 35 U.S.C. § 103
1. Alleged Obviousness of claims 1, 2, and 6–10 Over Lee, Tucker, and
Henderson
Petitioner contends claims 1, 2, and 6–10 of the ’833 patent would
have been obvious over Lee, Tucker, and Henderson. Pet. 39–75. Petitioner
argues that all the features of those claims are present in the prior art. Id. at
39–42, 48–75. Petitioner also argues that a skilled artisan would have had
adequate reason to combine the teachings of Lee, Tucker, and Henderson.
Id. at 43–48 (citing Ex. 1002 ¶¶ 134, 135, 138, 139, 141–143, and 145–147).
Patent Owner has a different view than Petitioner. Patent Owner
contends that Petitioner has not accounted adequately for all features that are
required by claim 1, and that Petitioner has not set forth sufficient reason to
combine the teachings of the prior art. We focus below on certain of the
features that Patent Owner contends are absent from the record.

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a) “receiving an indication from one or more remote computing
systems indicating that the electronically-controlled wood-
pellet grill is communicably connected to one or more remote
computing systems, wherein the one or more remote computing
systems is a cloud service”
Among other limitations, claim 1 recites “receiving an indication from
one or more remote computing systems indicating that the electronically-
controlled wood-pellet grill is communicably connected to one or more
remote computing systems, wherein the one or more remote computing
systems is a cloud service.” Ex. 1001, 13:25–32. Patent Owner initially
focuses its challenge to Petitioner’s ground of unpatentability on the
requirement that an “indication” is received and conveys that the grill is
“communicably connected to” the remote computing systems, i.e. the cloud
service. PO Resp. 22–28.
Petitioner contends that “Lee and Tucker collectively disclose this
limitation.” Pet. 48.4 Lee’s Figure 5, as annotated by Petitioner, is
reproduced below.

4 Petitioner relies on Tucker in connection with the noted limitation for only
the particular recitation in the claim of a “wood-pellet grill.” Pet. 51.
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Figure 5 above “is a signal flowchart illustrating a method of
providing a home appliance management service according to an
embodiment of the present invention.” Ex. 1003 ¶ 47. Petitioner urges that
“[s]tep 555 shows a transmission of data from the cloud-based data server
110 to the terminal apparatus 160—i.e., the user’s mobile device.” Pet. 49
(citing Ex. 1003 ¶ 203).
Petitioner asserts two different arguments: first, “the metadata
includes connectivity information, and, second, the signal itself indicates
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there’s a connection” (Tr. 11:18–12:6). We address each of those
arguments.
With respect to the first argument, according to Petitioner, Lee
explains that step 555 describes transmitted data as “metadata” that can
“include at least one piece of state information on a state of each of the home
appliances 150, service information related to a function of each home
appliance and information on a command code requested to control each
home appliance.” Pet. 50 (quoting Ex. 1003 ¶ 68; Ex. 1002 ¶ 152).
Petitioner also contends that one of ordinary skill in the art would have
understood from Lee’s disclosure that the state information of the appliance
transmitted “includes data indicating that the appliance is in network
communication with the cloud-based data server” and which “indicates that
the home appliance is communicably connected to the cloud.” Id. at 50–51
(citing Ex. 1002 ¶¶ 153–155).
For the purpose of instituting trial, and on the record that was then
before us, we accepted Petitioner’s position that Lee’s metadata, including
“state information” of an appliance, would have been understood by a
skilled artisan to include data indicating that an appliance is communicably
connected with the cloud. Inst. Dec. 26–27. In initially accepting that
position, we credited the testimony of Petitioner’s declarant, Dr. Houh, who
testified of such understanding by one of ordinary skill in the art. Id.
(crediting Ex. 1002 ¶ 153). We, however, noted that Patent Owner, at the
time, had not yet offered any countervailing testimony from its own expert
or cross-examined Dr. Houh on the matter. Id. at 27. Patent Owner has now
availed itself of the opportunity to do both.
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With support from the testimony of its declarant, Mr. Minoli (Ex.
2006), Patent Owner now argues that Lee provides no disclosure of “how the
network connectivity of an appliance is indicated, monitored, or otherwise
reported.” PO Resp. 24 (citing Ex. 2006 ¶ 92). To that end, Patent Owner
submits that Lee simply assumes that a valid network connection exists and
that “there is nothing in Lee that would need to indicate network
communication—by ‘metadata’ or otherwise.” Id. (citing Ex. 2006 ¶ 92
(e.g., “[g]iven that Lee simply assumes a priori network connectivity, Lee
does not disclose any metadata that would indicate that the appliance is
communicably connected with the cloud”); Ex. 1003 ¶¶ 63, 70–73). In
reviewing Lee’s disclosure, we discern that Lee conveys that appliances 150
generally are connected to a home network via a connection that is
established based on “universal plug and play (UPnP),” but Lee is less than
specific in conveying that it recognized the presence of an active indication
of communication between the network and the appliances. See, e.g., Ex.
1003 ¶ 63 (“The home appliances 150 may be connected to the home
gateway 130 through a home network in wired, and wireless fashion. The
home network may be established based on universal plug and play
(UPnP).”)
Petitioner and Dr. Houh infer from Lee’s disclosure of supplying
“state information” for an appliance that there is an intrinsic indication that
the information conveyed includes that the appliance is connected to a
network and presently is available to communicate. See, e.g., Pet. 50–51
(citing Ex. 1002 ¶¶ 152–155; Ex. 1003 ¶¶ 68, 194, 203). Careful review of
Dr. Houh’s testimony and Petitioner’s assessment of the cited portions of
Lee, however, reveals that they are predicated on a proposed expansive
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meaning of “state information” that is not well supported in the record at
hand. We do not discern from the evidence before us that “state
information” has a particular definition in Lee or an otherwise widely-
accepted meaning. Petitioner and Dr. Houh characterize Lee’s disclosure as
presenting a meaning of “metadata” that is “broad and non-limiting in
scope” and thus necessarily includes an indication of an appliance’s
communication capability. Pet. Reply 10; Ex. 1046 ¶ 16. To that end,
Petitioner’s approach evidently is premised on a view that, based on Lee’s
disclosure, a skilled artisan would understand “state information” of an
appliance to include all possible information pertaining to the appliance,
including current network connectivity information.
As Patent Owner observes, however, Lee does provide several explicit
examples of “state information” that seemingly dictate that the type of
information that is “state information” is not so expansive as Petitioner
advances. See PO Resp. 25 (citing Ex. 2006 ¶ 94). We also find credible
Mr. Minoli’s testimony that, given the lack of any explicit or widely
understood definition of “state information,” “one of skill in the art would
look to the examples in Lee to gain an understanding of what Lee means by
‘state information’.” Ex. 2006 ¶ 93. We agree that Lee’s examples
reasonably would inform a skilled artisan as to the meaning of “state
information.”
For instance, in connection with a refrigerator appliance, the collected
metadata is described as data derived from sensors measuring temperature or
which may generate information or the expiration date of food contained
therein. See Ex. 1003 ¶¶ 221–225. With respect to an appliance that is a
humidifier, Lee describes that the state information relayed may be that
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pertaining to the water level of a water tank. See id. ¶ 226. Patent Owner
and Mr. Minoli characterize the type of information contemplated in Lee as
“state information” as being related to “appliance-specific features” and “not
generic network connectivity.” PO Resp. 25–26; Ex. 2006 ¶ 95. We discern
that none of Lee’s expressed examples pertains or relates to an appliance’s
network connectivity status. Thus, we conclude that the record is nebulous
in conveying that a skilled artisan would associate information pertaining to
the status of an appliance’s network connectivity with Lee’s disclosed “state
information” of an appliance.
Even assuming that network connectivity information reasonably can
be regarded as state information, it does not follow from Lee’s broad
disclosure of transmitting other kinds of state information that network
connectivity information would be included in the transmission. Petitioner
does not point to any disclosure in Lee that all information about the state of
the appliance would be transmitted, without exception. Further, Petitioner
points to no disclosure that any sensor exists in Lee’s appliance to monitor
its own network connectivity to create such state information.
We also are mindful of Petitioner’s second view that the very action
of transmitting signal 555, with metadata, to terminal apparatus 160
constitutes an “indication” that the appliance is communicably connected to
the cloud. See, e.g., Pet. Reply 9 (“As explained in the Petition (Pet. 48–51),
the claimed ‘indication” is Lee’s signal 555”). In particular, Petitioner
contends the following:
Since the metadata is generated by the home appliance and
received by the data server, one skilled in the art would have
understood that the metadata input signal to the cloud-based data
server (step 535) indicates that the home appliance is
communicably connected to the cloud. That very same metadata
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–– or portion thereof –– is what is transmitted to the user’s
smartphone in step 555. Thus, a skilled artisan regarding Lee’s
Figure 5 would have understood that the metadata transmitted to
the smartphone in step 555 pertains to whether the appliance is
communicably connected to the cloud.
Pet. 51 (citations omitted). “Lee’s Step 555 still must indicate that the
appliance is communicably connected because the only way that metadata
gets to the user’s terminal apparatus is by passing through the data server,
which would indicate that the appliance is communicably connected to that
data server.” Tr. 12:2–6. Dr. Houh also testifies to that effect. See Ex. 1046
¶ 14 (“[Petitioner’s] Petition makes clear that Lee’s signal 555 is the claimed
‘indication’ (Pet. 48–51).”
Claim 1 requires an “indication” that the wood-pellet grill “is
communicably connected.” The nature of “is” in that context is that the
indication must be about the present communicable connection status of the
grill. Petitioner notes that the claims do not expressly require “current”
cloud connectivity. Pet. Reply 12. Petitioner, however, does not explain
why the absence of the term “current” changes the plain meaning of the term
“is communicably connected” to not require the grill’s present or current
communicable connection condition.
Petitioner takes the position that Lee’s disclosure that metadata may
be “immediately” sent “upon request” means that the metadata necessarily
reflects current information of the appliance. Id. (citing Ex. 1003 ¶¶ 133,
146, 151, 184–185). Lee provides no indication, however, that the metadata
sent in step 555 indicates the cloud-based server and home appliance are still
connected. Because Lee discloses that the metadata may be stored (Ex.
1003 ¶¶ 133, 146, 151, 184–185), there is no preclusion that, at the time of
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the request for the metadata, the home appliance is no longer connected for
communication with the cloud. Although the metadata may be sent
immediately “upon request,” that does not mean that at the time of the
“request” for the metadata, the metadata reflects any current information of
the home appliance. Indeed, Lee clearly contemplates that the stored
metadata may be used “in the future.” Ex. 1003 ¶ 133. In other words,
while the cloud-based server may immediately send the information, that
information might well have been obtained earlier and then kept in storage at
the server. It is speculative to assume that the cloud-based server queries the
appliance only after a request is received from the user. Petitioner points to
no such disclosure in Lee.
Furthermore, although Petitioner and Dr. Houh generally urge that
transmission of “stale” metadata would “not make sense,” that depends on
the meaning of “stale,” which Petitioner does not clarify. Metadata is not
necessarily “stale” simply because it is not up to the minute current. At least
Petitioner has not explained why it would be so. For instance, the
temperature within a refrigerator a minute ago may not be stale. Thus,
receipt of non-stale metadata does not equate to present communication
connectivity.
We also have considered paragraph 224 of Lee’s disclosure, which
states: “When the terminal apparatus 160 received the information from the
data server 110, the user of the terminal apparatus 160 may monitor a
current state of the refrigerator and control temperature of the refrigerator
using the terminal apparatus 160.” Ex. 1003 ¶ 224. In the absence of any
disclosure that the server queries the appliance only upon request from the
user, and in light of Lee’s disclosure that the uploaded state information is
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for future use, the reference to monitoring a current state of the refrigerator
is not sufficient to support Petitioner’s assertion that receiving state
information is itself an indication of present network connectivity of the
appliance. Just as we explained above why certain information from a short
moment ago may not be stale, certain information from a short moment ago
still may be deemed current. Something more is needed for Petitioner to
prove affirmative notification of present network connectivity of the
appliance.
Patent Owner’s declarant, Mr. Minoli, also acknowledged the
possibility that Lee’s metadata is not representative of the current state
information of a home appliance. See Ex. 2006 ¶¶ 98–104; Ex. 1048
(Minoli Deposition), 94:2–95:5. For example, Mr. Minoli testifies the
following: “the existence of metadata on the cloud is decoupled from
whether the appliance is communicably connected. At most, the existence
of metadata on the cloud-based data server 110 means that the appliance has
been communicably connected [to] the home gateway.” Ex. 2006 ¶ 101.
As is clear from the record, Dr. Houh and Mr. Minoli take opposing
views as to the nature of what a person of ordinary skill in the art would
have understood from the metadata supplied to Lee’s terminal apparatus
160. There is no challenge from either party as to the qualifications of either
declarant to give credible testimony in this proceeding. Nevertheless, for the
reasons discussed above, we are not satisfied that Dr. Houh’s testimony on
the issue of Lee’s metadata as constituting an indication of a grill’s
communicably connected status is supported by sufficient evidence of
record. We are also cognizant of Mr. Minoli’s testimony, discussed above,
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that Lee’s disclosure does not convey that any appliance is communicably
connected to the cloud.
It is Petitioner’s burden to prove is proposition of unpatentability by a
preponderance of the evidence. 35 U.S.C. § 326(e) (2018); see 37 C.F.R.
§ 42.1(d) (2019). Satisfaction of that burden must be based on evidence of
record. See In re Magnum Oil Tools Int’l, Ltd., 829 F.3d at 1380–81. We
have considered the parties’ respective positions. Given (1) Lee’s ambiguous
disclosure as to the full purpose, content, and nature of its metadata, (2) the
conflicting testimony of the parties’ expert declarants, and (3) the absence of
other persuasive evidence supporting Petitioner’s contention, we conclude
that Petitioner has not met its burden on the record that is before us.
b) “providing a notification in the software application indicating
that the electronically-controlled wood-pellet grill is available
to receive instructions”
Claim 1 also requires that a “notification” is provided to a software
application indicating that wood-pellet grill “is available to receive
instructions.” Petitioner attempts to account for this requirement in a
manner similar to that discussed above with respect to the “is communicably
connected” aspect of claim 1.5
In particular, Petitioner points to Lee’s Figure 5 and its step 560
showing “the terminal apparatus 160 ‘display[ing] the states of the home

5 Petitioner asserts that “Lee, Tucker, and Henderson collectively disclose
this limitation.” Pet. 52. Tucker and Henderson, however, are only cited to
account for additional disclosure of a “software application” and a “wood-
pellet grill.” Id. at 53–54. Thus, it is apparent that Petitioner relies on Lee’s
disclosure to meet the claim requirement pertaining to a notification that the
grill is “available to receive instructions.”
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appliances 150 based on the . . . metadata’ received in step 555.” Pet. 52
(quoting Ex. 1003 ¶ 204). Petitioner further contends that “Lee explains that
‘the states of the home appliances 150 may be output through a display of
the terminal apparatus 160.’” Id. Because, in Petitioner’s view, Lee provides
“broad description of state information,” such information includes that
Lee’s appliance is available to receive instructions. Id. at 53 (citing Ex.
1002 ¶160). Petitioner urges that its view “is supported by the fact that the
displayed state information is a portion of the metadata received from the
cloud-based data server in step 555—i.e., the indication that the appliance is
communicably connected to the cloud.” Id. And, that “a skilled artisan
would have understood that, once an appliance indicates that it is connected
to the cloud, the appliance is then ready to receive instructions from the user
via the cloud.” Id. (citing Ex. 1002 ¶161).
The testimony of Dr. Houh (Ex. 1002 ¶¶ 160–161) on which
Petitioner relies, however, provides little by the way of evidentiary citation
to the record to support the premise that Lee, itself, contemplates that its
metadata transmitted to terminal appliance 160 prompts display of a
notification that a home appliance is available to receive instructions. Patent
Owner challenges Petitioner’s and Dr. Houh’s positions on the basis that
their position that the displayed metadata “can include an indication that
Lee’s appliance is available to receive instructions” does not find sufficient
support in the record. PO Resp. 31–32 (quoting Pet. 53; Ex. 1002 ¶160).
Patent Owner also maintains that one of ordinary skill in the art “reading Lee
would not understand Lee’s ‘state information’ to include information about
whether the appliance is available to receive instructions.” PO Resp. 32
(citing Ex. 2006 ¶ 106).
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Having carefully reviewed the record at hand, we conclude that
Petitioner’s accounting for the requirement of “providing a notification in
the software application indicating that the electronically-controlled wood-
pellet grill is available to receive instructions” suffers from the same or
similar deficiencies as those discussed above with respect to the indication
that the grill is communicably connected. In that respect, we simply are not
persuaded that Petitioner has met its burden to show that a person of
ordinary skill in the art would have found that element taught in the prior art
of record.
c) Conclusion – Obviousness over Lee, Tucker, Henderson
Based on the record that developed during trial, we conclude that
Petitioner has not established by a preponderance of evidence that claim 1
would have been obvious over the teachings of Lee, Tucker, and Henderson.
Claims 2 and 6–10 depend from claim 1 and require all of the features of
that claim. We also conclude that Petitioner has not shown that claims 2 and
6–10 would have been obvious.
2. Alleged Obviousness of Claims 3 and 5
Petitioner contends claims 3 and 5 of the ’833 patent would have been
obvious over Lee, Tucker, Henderson, and Amer. Claims 3 and 5 ultimately
depend from claim 1. Petitioner does not rely on Amer’s teachings to
account for the missing features discussed above with respect to claim 1.
We conclude that Petitioner has not established by a preponderance of
evidence that claims 3 and 5 would have been obvious over the teachings of
Lee, Tucker, Henderson, and Amer.
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3. Alleged Obviousness of Claim 4
Petitioner contends claim 4 of the ’833 patent would have been
obvious over Lee, Tucker, Henderson, and Jablokov. Claim 4 depends from
claim 1. Petitioner does not rely on Jablokov’s teachings to account for the
missing features discussed above with respect to claim 1. Thus, for that
reason, we also conclude that Petitioner has not established by a
preponderance of evidence that claim 4 would have been obvious over the
teachings of Lee, Tucker, Henderson, and Jablokov.
Nevertheless, we also take note of an additional reason why
Petitioner’s proposed ground of unpatentability for claim 4 is deficient.
Claim 4 adds to claim 1 the following features:
determining that the user input is received from a
computing device located outside a specified distance from the
electronically-controlled wood-pellet grill; and
in response to the determination, disabling the one or more
instructions.
Ex. 1001, 14:7–12.
Thus, claim 4 requires a step of determining that a user input
from a device is received from “outside a specified distance” and a
subsequent step of disabling the one or more instructions. With
respect to that step, Petitioner contends the following:
Jablokov discloses this limitation, Jablokov discloses a
“method of monitoring and controlling an appliance” (which can
include an “outdoor grill”) by “sensing an identity and a
proximity of a user equipped with a radio-enabled component to
the appliance” (such as a mobile device, including a
smartphone), and “altering the operating state of the appliance
depending on the proximity of the authorized user (Ex. 1007,
Jablokov 1:51–60.) In particular, a “radio proximity detection
device” installed on the appliance “scans, e.g., using Bluetooth
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technology and the like, for any authorized radio-enabled
devices, such as smartphones 108, within the predetermined
range.” (Id. 11:47–51).
Pet. 89–90.
Jablokov also discloses that if the continued presence of a radio-
enabled device is detected within the predetermined range, the appliance
may be maintained in an operating state, and if not detected, the appliance
may be turned off. Ex. 1007, 11:64–12:7. Thus, Jablokov describes sensing
a signal, or input, “within [a] predetermined range” as the condition for
performing an operation with respect to an appliance.
Patent Owner contends that because Jablokov takes action when
determining whether a signal is detected that is “within” a proximity of an
appliance, it does not disclose taking an action when a user input is received
from “outside a specified distance” of an appliance as required by claim 4.
See PO Resp. 40–43; PO Sur-reply 16–17. We agree with Patent Owner.
We are not persuaded by Petitioner that the pertinent teachings of Jablokov
and the requirements of claim 4 are “functionally equivalent” and “two ways
of expressing the same thing.” Pet. Reply 24. The plain language of claim 4
requires that the catalyst for disabling instructions in connection with a
wood-pellet grill is the active determination of a user input that is received
from “outside” a particular range from the grill. Petitioner has not
adequately explained why such language conveys a determination and
condition that are materially the same with respect to what is recited in
claim 4.
In support of its position, Petitioner points to disclosure in the ’833
patent describing that “[i]n some cases, the user may even be able to ignite
the smoker/grill 202 remotely, while in other cases such functionality may
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be disabled unless the user is within a specified distance of the grill, as
determined by a GPS or Blue tooth geofence.” Pet. Reply 25 (quoting Ex.
1001, 7:50–54). Petitioner urges that such disclosure using the “within’
language is the same as that of Jablokov. Even if that is so, the “within”
language is not what is used in the claim. Rather, claim 4 recites “outside a
specified distance” which we have discussed above. “To coin a phrase, the
name of the game is the claim.” Giles Sutherland Rich, Extent of Protection
and Interpretation of Claims—American Perspectives, 21 Int’l Rev. Indus.
Prop. & Copyright L. 497, 499 (1990).
The claim requires disabling instructions after determining that user
input is received from a computing device that is located outside a specified
distance from the appliance. It requires actual receipt of such an input, i.e.,
an input that is outside of a specified distance. Joblokov’s not receiving a
signal that is within a specified range does not indicate receipt of an input
that is outside a specified distance.
Thus, we conclude that for the additional reason discussed above,
Petitioner has not established by a preponderance of evidence that claim 4
would have been obvious over the teachings of Lee, Tucker, Henderson, and
Jablokov.
CONCLUSION
For the foregoing reasons, in view of the record that developed during
trial, we conclude that Petitioner has not shown by a preponderance of the
evidence that claims 1–10 of the ’833 patent are unpatentable.
In summary,
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ORDER
It is
ORDERED that Petitioner has not shown by a preponderance of the
evidence that claims 1–10 of the ’833 patent are unpatentable; and
FURTHER ORDERED that, because this is a Final Written Decision,
parties to this proceeding seeking judicial review of our decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

Claims

35
U.S.C. §
Basis/Reference(s) Claims
Shown
Unpatentable
Claims
Not shown
Unpatentable
1, 2, 6–
10 103
Lee, Tucker,
Henderson,
1, 2, 6–10
3, 5 103 Lee, Tucker, Henderson, Amer
3, 5
4 103
Lee, Tucker,
Henderson,
Jablokov

4
Overall
Outcome
1–10
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For PETITIONER:

David Cavanaugh
Richard Goldenberg
Richard Crudo
Jeffrey Soller
WILMER CUTLER PICKERING HALE & DORR LLP
david.cavanaugh@wilmerhale.com
richard.goldenberg@wilmerhale.com
richard.crudo@wilmerhale.com
jeff.soller@wilmerhale.com

For PATENT OWNER:

Michael Chu
Brian Jones
McDERMOTT WILL & EMERY LLP
mchu@mwe.com
bajones@mwe.com