FLIR Systems, Inc.v.LEAK SURVEYS, INC.

Patent Trial and Appeal Board

Sep 3, 2015

13462609 (P.T.A.B. Sep. 3, 2015)

Trials@uspto.gov IPR2014-00411 Paper 114
Tel: 571-272-7822 IPR2014-00434 Paper 16
IPR2015-00065 Paper 72
Entered: September 3, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
FLIR SYSTEMS, INC.,
Petitioner,
v.
LEAK SURVEYS, INC.,
Patent Owner.
_______________

Case IPR2014-00411/434 (Patents 8,426,813 B2 and 8,193,496 B2)
Case IPR2015-00065 (Patent 8,426,813 B2)
_______________

Before FRED E. McKELVEY, JAMES T. MOORE, and
TREVOR M. JEFFERSON, Administrative Patent Judges.

JEFFERSON, Administrative Patent Judge.

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

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I. INTRODUCTION
A. Background
FLIR Systems, Inc. (“Petitioner” or “FLIR”) filed four petitions
seeking inter partes review of U.S. Patent No. 8,426,813 B2 (“the ʼ813
patent”) and U.S. Patent No. 8,193,496 B2 (“the ’496 patent”). Filed were a
first petition in IPR2014-00411 (“IPR ʼ411”) and a second petition in
IPR2014-00608 (“IPR ʼ608”) seeking inter partes review of claims 1–58 (all
of the claims) of the ʼ813 patent. 35 U.S.C. § 311; Paper 2 (IPR ʼ411);
Paper 2 (IPR ʼ608).
1
Also filed were a third petition in IPR2014-00434
(“IPR ʼ434”) and a fourth petition in IPR2014-00609 (“IPR ʼ609”) seeking
inter partes review of claims 1–7 and 9–20 the ’496 patent. 35 U.S.C.
§ 311; Paper 2 (IPR ʼ434); Paper 2 (IPR ʼ609).
Leak Surveys, Inc. (“Patent Owner” or “LSI”) filed a Patent Owner’s
Preliminary Response in IPR ʼ411 (Paper 6 corrected by Paper 8); IPR ʼ608
(Paper 6 corrected by Paper 8); IPR ʼ434 (Paper 6); and IPR ʼ609 (Paper 7).
In a consolidated Decision to Institute (Paper 9 in IPR ’411 and Paper
9 in IPR ’434, “Dec. ’411”), we denied institution in IPR ’608 and IPR ’609
and in IPR ’411 and IPR ’434 instituted this proceeding as to claims 1–22,
31, 37–40, 42–56, and 58 of the ʼ813 patent and claims 1–7 and 9–20 of the
ʼ496 patent. Dec. ’411, 35–36. Subsequently, we consolidated IPR2014-
00434 with IPR2014-00411 and terminated the IPR2014-00434 proceeding.
Paper 10 (IPR ’411); Paper 9 (IPR ’434).

1
The IPR in parentheses after a paper number or exhibit number indicates
the IPR docket that contains the numbered filing.
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In IPR2015-00065 (“IPR ’065”), FLIR filed a fifth petition,
requesting inter partes review of claims 23–30, 32–36, 41, and 57 of the
’813 patent pursuant to 35 U.S.C. §§ 311–319. Paper 2 (IPR ’065). FLIR
subsequently withdrew claim 29 from the requested inter partes review, thus
challenging only claims 23–28, 30, 32–36, 41, and 57 of the ’813 patent.
Paper 10 (IPR ’065). LSI filed a Preliminary Response in two parts, Part 1
(Paper 8 (IPR ’065)) and Part 2 (Paper 16 (IPR ’065)).
Pursuant to 35 U.S.C. § 314, in our Decision to Institute (Paper 25,
“Dec. ’065”), we instituted inter partes review as to claims 23–28, 30, 32–
36, 41, and 57 of the ’813 patent. Dec. ’065, 18–19. We further combined
IPR2014-00411 with IPR2015-00065 for purposes of scheduling, briefing,
and trial. Paper 28, 7 (IPR ’065).
LSI filed a Patent Owner Response as to all IPRs (Paper 65 (IPR
’411), Paper 37 (IPR ’065), “PO Resp.”) and FLIR filed a Reply to the
Patent Owner Response (Paper 77 (IPR ’411), Paper 42 (IPR ’065),
“Reply”).
2
A consolidated oral hearing for IPR2014-00411 and IPR2015-
00065 (Paper 70 in IPR ’065 and Paper 112 in IPR ’411, “Tr.”) was held on
July 2, 2015.
For the reasons that follow, we determine that FLIR has shown by a
preponderance of the evidence that claims 1–28 and 30–58 of the ’813
patent and claims 1–7 and 9–20 of the ’496 patent, are unpatentable.

2
All references herein to the Patent Owner Response (PO Resp.) are to the
redacted Paper 66 (IPR ’411) and Paper 37 (IPR ’065).
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B. Related Cases
FLIR states that the ’813 patent, which claims priority to the ’496
patent, has been asserted by LSI in Leak Surveys, Inc. v. FLIR Systems, Inc.,
Civil Action No. 3:13-CV-02897-L (N.D. Tex.) (filed July 25, 2013). Paper
2, 1 (IPR ’411); Paper 4, 2 (IPR ’065).

C. The Asserted Grounds
In the consolidated IPRs, we instituted trial on the grounds that the
following cited references
3
render the challenged claims unpatentable as
obvious pursuant to 35 U.S.C. § 103(a):
References IPR Claim(s) Challenged
Merlin Brochure
4
and
Strachan
5

IPR ’411
’813 Patent: 1–4, 6, 8–22,
31, 37–40, 42–56, 58
Merlin Brochure, Strachan,
and Piety
6

IPR ’411 ’813 Patent: 5 and 7
Merlin Brochure and
Strachan
IPR ’434 ’496 Patent: 1–5 and 9–20
Merlin Brochure, Strachan,
and Brengman
7

IPR ’434 ’496 Patent: 6

3
Exhibit numbers herein refer to exhibits filed in both IPR ’411 and IPR
’065 that share the same number. An exhibit number followed by a specific
IPR in parentheses denotes an exhibit filed in the identified IPR.
4
Indigo Systems Corporation, Merlin: The ultimate combination of
flexibility and value in high-performance Infrared Cameras (Rev. A 1/02),
dated ©2002 (Ex. 1007, “Merlin Brochure”).
5
D.C. Strachan et al., Imaging of Hydrocarbon Vapours and Gases by
Infrared Thermography, 18 J. PHYS. E: SCI. INSTRUM. 492-498 (1995) (Ex.
1008, “Strachan”).
6
U.S. Patent No. 5,386,117 issued on January 31, 1995 (Ex. 1018, “Piety”).
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References IPR Claim(s) Challenged
Merlin Brochure, Strachan,
and Hart
8

IPR ’434 ’496 Patent: 7
Merlin Brochure and
Strachan
IPR ’065 ’813 Patent: 23, 25, 28, 30
Merlin Brochure, Strachan,
and Spectrogon
9

IPR ’065 ’813 Patent: 27, 32–35, 41
Merlin Brochure, Strachan,
and OCLI
10

IPR ’065 ’813 Patent: 24, 26, 36, 57
Merlin User’s Guide
11
and
Kulp
12

IPR ’065 ’813 Patent: 23, 33, 35
Merlin User’s Guide, Kulp,
and Spectrogon
IPR ’065
’813 Patent: 25, 27, 28, 30,
32, 34, 41
Merlin User’s Guide, Kulp,
and OCLI
IPR ’065 ’813 Patent: 24, 26, 36, 57

7
U.S. Patent No. 3,662,171 issued on May 9, 1972 (Ex. 1013 (IPR ’434),
“Brengman”).
8
U.S. Patent No. 6,056,449 issued on May 2, 2000 (Ex. 1014 (IPR ’434),
“Hart”).
9
Spectrogon Catalog of Bandpass Filters (http://www.spectrogon.com
/bandpass.html dated October 6, 2001) (Ex. 1017, “Spectrogon”).
10
OPTICAL COATING LABORATORY, INC. SPECTRABAND STOCK PRODUCTS
CATALOG, Vol. 5 (1994) (Ex. 1014, “OCLI”).
11
Indigo Systems Corporation, MERLIN
TM
MID, INSB MWIR CAMERA,
User’s Guide, Version 1.10, 414-0001-10 (Ex. 1011, “Merlin User’s
Guide”).
12
Thomas J. Kulp et al., Remote Imaging of Controlled Gas Release using
Active and Passive Infrared Imaging Systems, 3061 SPIE 269 (1997) (Ex.
1012, “Kulp”).
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D. The ’813 Patent and Illustrative Claims
The ʼ813 patent is based on an application which is a continuation of
the application that matured into the ʼ496 patent. Ex. 1001, 1:6–9.
13
The
ʼ813 patent relates to an infrared (IR) camera system which can be used to
visually detect and identify chemical, gas, and petroleum product leaks.
Ex. 1001, 1:27–29, 28:44–67.
The ʼ813 invention is readily understood by reference to its drawings
and exemplary claims 1, 23, and 24. Figs. 1 and 2 of the ʼ813 patent are
reproduced below.

Fig. 1 depicts a perspective view of a chemical leak detection system

13
Ex. 1001 refers to the ’813 patent filed in both IPR ’411 and IPR ’065.
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Fig. 2 depicts a schematic of an infrared camera system of Fig. 1
Figures 1 and 2 show infrared camera system 22, lens assembly 40,
and lens 38. Ex. 1001, 5:34–38. Camera system 22 has refrigerated portion
42 cooled by refrigeration system 60. Id. at 5:34–41, 5:66–67. The
refrigerated portion 42 also comprises infrared sensor device 44 and optical
bandpass filter 46. Id. at 5:41–43. The refrigeration cools optical bandpass
filter 46, reducing the background noise of bandpass filter 46 as perceived
by infrared sensor device 44. Id. at 6:45–47. Optical bandpass filter 46 is
located along an optical path between lens 38 and infrared sensor device 44.
Id. at 5:41–43. At least part of a pass band for optical bandpass filter 46 is
within an absorption band for the detected chemical. The infrared image of
the detected chemical passes through the lens and optical bandpass filter and
the filtered infrared image of the leak is received with the infrared sensor
device. Id. at 3:4–11. The visible image of the leak is produced by
processing the filtered infrared image received by the infrared sensor device.
Id.
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Independent claim 1 and dependent claims 23 and 24 are illustrative
of the claimed subject matter of the ’813 patent.
1. A system for producing a visible image of a leak of
any one or more chemicals of a group of chemicals, the
leak emanating from a component, including:
a passive infrared camera system including:
a lens assembly including a lens;
a refrigerated portion including an interior;
an infrared sensor device located in the interior of
the refrigerated portion;
a single filter configuration located in the interior
of the refrigerated portion and including an optical
bandpass filter fixed along an optical path between the
lens assembly and the infrared sensor device;
a refrigeration system that can cool the interior of
the refrigerated portion;
wherein at least part of the pass band for the single
filter configuration is within an absorption band for each
of the chemicals; and
wherein the aggregate pass band for the single
filter configuration is at least about 100 nm; and
a processor that can process a signal representing
the filtered infrared image captured by the infrared sensor
device to produce a visible image of the chemical
emanating from the component under variable ambient
conditions of the area around the leak.
23. The system of claim 1, wherein the aggregate
pass band for the single filter configuration is at least
about 200 nm.
24. The system of claim 1, wherein the pass band
for the filter configuration has a center wavelength
located between about 3375 nm and about 3385 nm.
Ex. 1001, 28:44–67, 30:3–7.
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E. The ’496 Patent and Illustrative Claim
The ʼ496 patent relates to a method of using an IR camera system to
visually detect and identify chemical, gas, and petroleum product leaks. Ex.
1001, 1:25–27, 28:41–29:8.
14
The drawings and written description portion
of the Specification of the ʼ496 patent are essentially the same as the
drawings and written description portion of the Specification of the ʼ813
patent. Compare Ex. 1001 (IPR ’434) with Ex. 1001.
Claim 1 is illustrative of the subject matter of the ’496 patent.
1. A method of visually detecting a gas leak of any
one or more chemicals of a group of predetermined
chemicals, the gas leak emanating from a component of a
group of components in different locations, the method
comprising:
aiming a passive infrared camera system towards
the component, wherein the passive infrared camera
system comprises:
a lens,
a refrigerated portion defined by the interior of a
Dewar flask, the refrigerated portion comprising therein:
an infrared sensor device; and
a single filter configuration comprising at least one
fixed optical bandpass filter, each filter fixed along an
optical path between the lens and the infrared sensor
device, wherein at least part of the aggregate pass band
for the single filter configuration is within an absorption
band for each of the predetermined chemicals and

14
Ex. 1001 (IPR ’434) refers to the ’496 patent filed in IPR ’434.
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wherein the aggregate pass band for the single filter
configuration is at least about 200 nm; and
a refrigeration system adapted to cool the
refrigerated portion, the refrigeration system comprising
a closed-cycle Stirling cryocooler;
filtering an infrared image associated with the area
of the gas leak under normal operating and ambient
conditions for the component with the at least one optical
bandpass filter;
receiving the filtered infrared image of the gas leak
with the infrared sensor device;
electronically processing the filtered infrared
image received by the infrared sensor device to provide a
visible image of the gas leak under variable ambient
conditions of the area around the leak; and
visually detecting the leak based on the visible
image under the variable ambient conditions.

Ex. 1001 (IPR ’434), 28:40–29:8.

II. ANALYSIS
A. Claim Construction
The Board interprets claims of an unexpired patent using the broadest
reasonable construction in light of the specification of the patent in which
they appear. See 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC,
793 F.3d 1268, 1278–79 (Fed. Cir. 2015). Claim terms generally are given
their ordinary and customary meaning, as would be understood by one of
ordinary skill in the art in the context of the entire disclosure. See In re
Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).

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1. “leak”
In the preliminary Decision to Institute, we found that “leak” is broad
enough to include both fugitive and non-fugitive emissions. Dec. ’411, 17.
Thus, on the preliminary record we agreed with FLIR that “leak” should be
defined as any chemical emission including (1) an unwanted (“fugitive”)
chemical emission and (2) a known (“non-fugitive”) chemical emission,
such as a chemical gas emission from an exhaust outlet of an airplane or a
smokestack. Paper 2, 12 (IPR ’411); Paper 2, 10 (IPR ’434); Paper 2, 12–13
(IPR ’065). We found that the ʼ813 patent states that “[a]n embodiment of
the present invention may be used to inspect any of a wide variety of
components having [a] chemical . . . of interest . . . , including (but not
limited to) a pipe, a compressor, . . . a flare, an exhaust outlet, . . . [or] a vent
for a blow-off valve.” Ex. 1001, 12:17–25.
LSI disagrees with our preliminary construction and argues that the
construction of “leak” deviates from the ordinary meaning of the term. PO
Resp. 31–33. LSI relies on extrinsic evidence to supports its contention that
the ordinary meaning of “leak” as recited in the ’813 and ’496 patents is
limited to unintended or fugitive emissions. PO Resp. 33. LSI’s contention
fails to recognize and distinguish the express teaching that chemicals of
interest from flares, exhausts, vents or blow off valves are expressly
described as uses of the claimed invention. Ex. 1001, 12:17–25. Indeed,
one portion of the specification that LSI relies on to distinguish known
versus unknown emissions, indicates that the invention is used to survey
known emissions of gas from vents. Ex. 1001, 20:28–31; see PO Resp. 34.
Although LSI admits that exhaust valves and flares will have known
emissions and that the invention is used to survey these structures (PO Resp.
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32), LSI argues that the term “leak” does not include the known emissions
from these structures, as the ordinary use of the term is limited to fugitive or
unknown emissions. We disagree, concluding that a person of ordinary skill
in the art would understand that the specification describes a chemical of
interest that is present in valves and exhausts that have known emissions.
Ex. 1001, 12:22, 20:28–32.
15

Under the broadest reasonable interpretation, LSI’s extrinsic evidence
does not persuade us that a person of ordinary skill in the art would
understand that “leak” as used in the specification and claims is limited to
only unknown or fugitive emissions. Accordingly, on the full record, we
maintain our construction of “leak” as including both fugitive and non-
fugitive emissions.

2. “produce a visible image of the chemical emanating from the component
under variable ambient conditions of the area around the leak”
In the Decision to Institute, we preliminarily construed “produce a
visible image of the chemical emanating from the component under variable
ambient conditions of the area around the leak” means “being able to
produce a visible image under the ambient conditions of the area around the

15
In addition, we note that LSI’s claims using the term “leak” were rejected
over intended or known emissions from a smokestack. See Ex. 1002, 319,
416–419. Patent Owner disputed and overcame the Examiner’s rejection on
different grounds, but did not dispute the Examiner’s application of
smokestack emissions to gas leaks. See id. Thus, at least during
prosecution, the term leak was determined by the Examiner to include
known emissions.
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leak.” Dec. ’411, 17–18. LSI does not dispute this construction, but instead
argues that
POSITA [i.e., a person having ordinary skill in the art,] would
understand this claim limitation to require that the claimed
invention be capable of operating under a full range of normal
operating conditions, such as different temperatures or sunlight;
and it would not encompass prior art systems that could image
gases only within a narrow range of field conditions, such as
temperature.
PO Resp. 27. Specifically, LSI argues that “in the context of the full claims,
this limitation should be construed to mean that an infringing method must
operate to image gas leaks under real-world field conditions, without taking
steps to artificially control any variables such as background temperature,
wind, etc.” Id. at 25. LSI does not provide any argument or evidence that
the patent describes the range of “real-world” versus “artificially controlled”
conditions. Instead, LSI’s construction merely seeks to eliminate any
conditions obtained in a lab or test setting from ambient conditions in other
settings.
We are not persuaded that the patent claims’ references to variable
ambient conditions are limited to “real-world” conditions. As we previously
noted, a person having ordinary skill in the art would understand that the
claimed system and method would typically be used outdoors, where
environmental conditions change, at the point where a leak may occur. Dec.
’411, 18. For example, in the summer, a chemical of interest may be present
at higher temperature than the same chemical of interest in the winter. Id.
Similarly, exhaust temperature may vary depending on conditions.
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LSI admits that “the claim does not specify what the normal operating
conditions would be” under given circumstances. Oral Argument Transcript
(“Tr.”) 62:23–24. LSI also admits that a smokestack, for example, would
have “a different range of normal operating conditions.” Tr. 63:6–8.
Because these conditions vary and the ’813 and ’496 patent specifications
are silent on the range or limits of normal operating conditions, we are not
persuaded by LSI’s attempt to exclude controlled environments from the
claimed ambient conditions. See PO Resp. 26–27. We find no support for
LSI’s contention that “variable ambient conditions” or “normal operating in
variable ambient conditions” is limited to those instances that are not
constrained or controlled in some artificial manner. Id.
On the full record, we maintain our constructions of “produce a
visible image of the chemical emanating from the component under variable
ambient conditions of the area around the leak” as meaning “being able to
produce a visible image under the ambient conditions of the area around the
leak.”

B. Asserted Prior Art
1. Merlin Brochure (Ex. 1007)
The Merlin Brochure discloses a mid-wavelength (MWIR) infrared
camera (“Merlin-MID”) that includes an infrared sensor device (InSb focal
plane array) and a 3-5 μm bandpass cold filter within a refrigeration portion
defined by the interior of a Dewar flask. Ex. 1007, 3, 6; see Ex. 1011, 1.
The Merlin-MID also includes a refrigeration system (a closed-cycle Stirling
cryocooler) that cools the refrigeration portion of the Merlin-MID and the
filter. Ex. 1007, 6.
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The ’813 patent states that “[a] preferred infrared camera system 22,
for example, for use in an embodiment of the present invention is a Merlin™
mid-wavelength infrared (MWIR) high-performance camera available from
Indigo Systems, Inc. in California.” Ex. 1001, 6:19–23. The Merlin-MID
camera described in the brochure is the Merlin MWIR camera discussed in
the ’813 patent. Ex. 1001, at [56] (citing Merlin Brochure by Indigo
Systems Corp. (2002)), 6:19–23 (citing Merlin mid-wavelength infrared
MWIR camera as the preferred embodiment of camera system 22).

2. Merlin User’s Guide (Ex. 1011)
The Merlin User’s Guide describes features of the Merlin Brochure
MID InSb camera. The Merlin User’s Guide discloses a passive infrared
camera with a refrigeration portion including an interior. Ex. 1011, 2, 51.
Merlin User’s Guide describes both a cold filter and infrared sensor device
located in the interior of the refrigeration portion. Id. at 51.
The Merlin User’s Guide states:
Merlin Mid is a mid-wavelength infrared (MWIR) high-
performance camera offered by Indigo systems Corp. The
camera consists of a Stirling-cooled Indium Antimonide (InSb)
Focal Plane Array (FPA) built on an Indigo Systems ISC9705
Readout Integrated Circuit (ROIC) using indium bump
technology. The FPA is a 320 x 256 matrix or ‘staring’ array of
detectors that are sensitive in the 1.0 μm to 5.4 μm range. The
standard camera configuration incorporates a cold filter that
restricts the camera’s spectral response to the 3.0-5.0 micron
band. The FPA is enclosed in an all-metal evacuated [D]ewar
assembly cooled by a closed-cycle Stirling cryocooler, and is
thermally stabilized at a temperature of 77 K.

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Ex. 1011, 1. “The lens-to-camera interface is shown in Appendix B” (Ex.
1011, 3) reproduced below.

Depicted above is the Merlin InSb camera,
mechanical and optical interface.
The filter is located in the general area of the “aperture” and the filter
bandpass is identified as 3.6 to 4.9 or 3.0 to 5.0 depending on the aperture
diameter. Ex. 1101, 51. The IR sensor is located in the general area
identified as FPA (focal point array) sensor. The refrigerated area is the
space between the filter and the IR sensor.

3. Kulp (Ex. 1012)
Kulp discloses “results of field tests of an active backscatter
absorption gas imaging (BAGI) system and a passive imager on a Ga:Si
infrared focal-plane array.” Ex. 1012, 269 (Abstract). The passive imager
on an infrared focal-plane array “images gases through temperature or
emissivity differences.” Id.
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Specifically, Kulp discloses a camera equipped with a narrow
bandpass cold filter to detect sulfur hexafluoride (SF6) gas. Ex. 1012, 270.
Figure 2 of Kulp shows that the cold filter has an aggregate passband of
about 570 nm between wavenumber 920 (about 10870 nm) and wavenumber
970 (about 10300 nm). Id. at 270 (Figure 2). In addition, Figure 9 of Kulp
shows that the Ga:Si passive infrared camera provides a visible image of the
SF6 gas at different times of day at different temperatures. Id. at 277.
Figure 9 is depicted below.

Figure 9 shows passive images collected of gas releases at two
different times of the day. The graph plots the target and air temperature
during the day. Id. Kulp states that “[the passive IR approaches] are
attractive because of its unlimited range and spectral bandwidth, and its
simplicity . . . . Its use must, however, be accompanied by the assumption
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that the required temperature and/or emissivity differences between the gas
and background will always exist.” Ex. 1012, 277.

4. Strachan (Ex. 1008)
Strachan discloses a demonstration of “an infrared imaging technique
for the visualization of hydrocarbon gases and vapours.” Ex. 1008, 1
(Abstract). Strachan describes “a qualitative imaging approach to
gas/vapour detection.” Id. at 1 (Section 1). Strachan states:
The technique is based on real-time infrared imaging
(thermography), which produces images of objects from their
own infrared heat radiation. By selecting spectral absorption
windows characteristic of hydrocarbon vapours and gases it is
possible to visualise such gases against a background thermal
scene. The approach and its limitations in terms of
hydrocarbon detection and instrument development
requirements for ambient temperature operations are discussed.

Id. Figure 3 shows the schematic of a hydrocarbon imaging system
disclosed in Strachan.

“Figure 3 indicates schematically the operation of a hydrocarbon detection
system.” Ex. 1008, 493. Figure 3 shows “a detector is housed in its own
Dewar flask, which contains a small quantity of liquid nitrogen coolant.
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Infrared radiation from the source object is imaged by a multi-element lens,
generally silicon or germanium.” Ex. 1008, 493. Strachan states:
The detector signal is then processed electronically to
produce a real-time infrared television picture or thermogram.
. . . . The camera views the thermal background scene around
and through any intervening hydrocarbon cloud. Providing
background and cloud are not in total thermal equilibrium with
each other, then it is possible to visualise the gas cloud against
the background.

Id. Strachan disclosed an infrared imaging system fitted with a specific filter
for detecting hydrocarbon gases, discussing two different example filters,
having bandwidths centered approximately at 3.4 μm, for detecting
hydrocarbon gases. Id. Furthermore, Strachan discloses the use catalogs of
infrared absorption spectra for various hydrocarbon vapors. Id.

5. Hart (Ex. 1014 (IPR ’434)
Hart is a U.S. patent, issued on May 2, 2000, titled “Frame Assembly
For Supporting A Camera.” Figure 1 of Hart is reproduced below.

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Figure 1 of Hart shows a camera supported by a frame assembly that
includes frame 4, 7, shoulder rest 3, and handle 5, 6 extending from the
frame. Ex. 1014 (IPR ’434), 4:41–45, 52–55, 5:24–25. Figure 1 of Hart
also discloses that aiming the camera towards a component is performed by
a person holding the infrared camera system.

6. Spectrogon (Ex. 1017) and OCLI (Ex. 1014)
Spectrogon shows a catalog of bandpass filters available at the time of
the invention. Ex. 1017. The Optical Coating Laboratory, Inc. (“OCLI”)
products catalog likewise discloses a catalog of optical filters available at the
time of invention. Ex. 1014.

7. Piety (Ex. 1018)
Piety is a U.S. patent issued in 1995, titled “Infrared Thermography
System Including Mobile Unit,” and discloses a mobile infrared
thermography unit that includes a data processing device operable to record
user notes. Ex. 1018, 14: 18-22. Specifically, Piety discloses:
The mobile infrared thermography unit includes an infrared
camera, a storage device such as a videotape recorder for at
least recording thermographic images captured by the infrared
camera, and a mobile unit computer. The mobile unit computer
includes a touch screen display for presenting information to a
thermographer and for receiving data and command inputs from
the thermographer.

Ex. 1018, Abstract ll. 4–11.

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8. Brengman (Ex. 1013 (IPR ’434))
Brengman is a U.S. patent that issued in 1972, titled “Methane Gas
Detection System Using Infrared.” Brengman discloses using an infrared
gas detection system mounted on an airborne platform to detect methane gas
leaks in buried gas pipelines. Ex. 1013 (IPR ’434), 1:70–72, 4:12–15.
Brengman further discloses that the airborne platform may be a helicopter.
Id. at 7:38–40.

C. Merlin References as Prior Art and Printed Publication
FLIR contends that the Merlin Brochure (Ex. 1007) is a prior art
printed publication. Paper 2, 10 (IPR ’65); Paper 2, 8–9 (IPR ’411). At the
time of filing the Response, LSI contested whether the Merlin Brochure is
publicly available prior art. PO Resp. 70–73. At oral argument, LSI
withdrew its argument that the Merlin Brochure was not publicly available.
Tr. 40:1–9 (stating that LSI no longer contends that the Merlin Brochure was
not publicly available).
With respect to the Merlin User’s Guide (Ex. 1011), FLIR argues that
testimony evidence shows that the guide was distributed with sales of the
Merlin camera. Ex. 1016 ¶ 7 (stating that “[t]he Merlin User’s Guide is a
user guide that describes the Merlin-MID camera sold by Indigo” and
“distributed to customers with the Merlin-MID camera”).
LSI argues that because the Merlin User’s Guide was only delivered
to purchasers of the expensive Merlin MID camera (citing Ex. 2063 at
LSI0000483, LSI0000816, LSI0000853), it was not available such that
ordinarily skilled artisans could locate it by exercising reasonable diligence.
See In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004). LSI further
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argues that publications that are available only at high costs render the
document effectively inaccessible to members of the general public. PO
Resp. 70 (citing Virginia Innovation Scis., Inc. v. Samsung Elecs. Co., 983
F. Supp. 2d 713, 738 (E.D. Va. 2014)). We note that LSI acknowledges that
a Merlin user’s guide with the same title as the Merlin User’s Guide (Ex.
1011) was previously considered during prosecution. PO Resp. 73. LSI also
acknowledges that FLIR’s witnesses state the Merlin User’s Guide (Ex.
1011) was available to purchasers of the Merlin MID as of the critical date.
PO Resp. 71. Despite this evidence of public availability, LSI argues that
the guide was only available to purchasers of the camera and the expense of
buying the camera means the Merlin User’s Guide (Ex. 1011) is not a
printed publication freely accessible to the public prior to the critical date.
PO Resp. 71 (citing Virginia Innovation. 983 F. Supp. 2d at 738).
We are not persuaded by LSI’s arguments. The case LSI relies on,
Virginia Innovation, is neither binding authority nor persuasive authority.
The facts in Virginia Innovation can be distinguished from the facts of the
present case, as the prior art in question in Virginia Innovation was not
sufficiently shown to be generally on sale to the interested public, and was
instead “restricted” to members of a publishing organization, which required
membership dues for access. See 983 F. Supp. 2d at 737–38. Indeed, the
district court in Virginia Innovation noted that there was no evidence that the
document was available for sale to the general public outside of the
publishing organization members. Id. In the present case, no membership
fee or organization membership is required for access to the Merlin User’s
Guide, which testimony shows was available and sold to the interested
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public as early as late 2000. See Ex. 1026 ¶¶ 17–19; Ex. 1024 ¶¶ 12–14; Ex.
1016 ¶ 12.
Based on the complete record, we find by a preponderance of the
evidence that distribution of the Merlin User’s Guide with the sale of the
Merlin MID camera shows sufficient public accessibility and distribution.
The cost to obtain the camera does not negate the evidence that the camera
and accompanying user’s guide was available to the interested public. The
testimony evidence shows that the Merlin User’s Guide was available for
sale and distribution to the interested as early as 2000. Thus, FLIR has
shown by a preponderance of the evidence that the Merlin User’s Guide was
a publicly available printed publication.

D. Level of Ordinary Skill in the Art
FLIR contends that a person of ordinary skill in the art would have
relevant experience with passive IR (infrared) systems in addition to the
requisite engineering or physics education. Paper 2, 10–11 (IPR ’065);
Reply 19–20. LSI contends that in addition to the requisite physics or
optical science/engineering education a person of ordinary skill the art
would have experience developing IR camera systems generally. PO Resp.
22. LSI’s contention is that FLIR’s definition of a person of ordinary skill is
too narrowly focused on passive IR systems and is evidence of hindsight
bias. PO Resp. 23.
LSI’s arguments are contradictory and confusing; asserting not only
that FLIR’s person of ordinary skill in art is overly narrow and defined as a
“specialist in the [’813 and ’496 patents’] specific solution to the problem
being solved,” but also that FLIR’s artisan “would not [] have been familiar
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with the technical problem being addressed by the invention.” PO Resp. 22
(emphasis omitted). Regardless, FLIR argues that the invention would have
been obvious under either FLIR’s or LSI’s proposed person of ordinary skill
in the art. Reply 20.
Based on the full record, we find that the level of ordinary skill in the
art is evidenced by the prior art references and the type of problems and
solutions described in the ’813 and ’496 patents (Ex. 1001, 1:25–2:34), and
includes experience in imaging of chemical gases using IR camera systems
generally in addition to the requisite engineering, physics or optical science
education. See In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995).
Moreover, and apart from any differences of opinion between FLIR and LSI
on the precise background and knowledge of one skilled in the art, the prior
art itself is highly indicative of the level of skill. See id. (“the level of
ordinary skill in the art . . . was best determined by appeal to the references
of record”). In any event, we do not find that a person of ordinary skill’s
understanding of the teachings of the prior art would differ if an ordinarily
skilled artisan possessed knowledge of both active and passive IR systems
rather than knowledge of passive IR systems alone. See PO Resp. 22–24.

E. Obviousness of the Challenged Claims
FLIR contends that the combinations of the Merlin Brochure, the
Merlin User’s Guide, Kulp, Strachan, Piety, Spectrogon, and OCLI render
claims 1–28 and 30–58 of the ’813 patent unpatentable based on
obviousness. For the reasons given below, after consideration of the
Petition, the arguments in the Patent Owner Response, and the evidence of
record, we conclude that FLIR has shown by a preponderance of the
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evidence that each of claims 1–28 and 30–58 of the ’813 patent is
unpatentable as obvious.
FLIR also contends that the Merlin Brochure and Strachan render
claims 1–5 and 9–20 of the ’496 patent unpatentable as obvious. Paper 2,
14–48 (IPR ’434). FLIR asserts that dependent claim 6, which depends
from claim 1, is rendered unpatentable as obvious by Brengman, the Merlin
Brochure and Strachan. Id. at 48–50. Finally, FLIR contends that
dependent claim 7, which depends from claim 1, is rendered unpatentable as
obvious by Hart, the Merlin Brochure, and Strachan. Id. at 50–51.
For the reasons that follow, we find by a preponderance of the
evidence that FLIR has demonstrated that the challenged claims, claims 1–
28 and 30–58 of the ’813 patent and claims 1–7 and 9–20 of the ’496 patent,
are unpatentable as obvious.

1. Petitioner’s ’813 Patent Contentions
FLIR asserts that claims 1–4, 6, 8–22, 31, 37–40, 42–56, and 58 are
unpatentable under 35 U.S.C. § 103(a) over the Merlin Brochure (Ex. 1007)
and Strachan (Ex. 1008). Paper 2, 9, 34 (IPR ʼ411). FLIR also asserts
dependent claims 5 and 7, which depend from claim 1, are unpatentable
under 35 U.S.C. § 103(a) over the Merlin Brochure (Ex. 1007), Strachan
(Ex. 1008), and Piety (Ex. 1018). Paper 2, 9, 54 (IPR ʼ411).
FLIR provides claim charts and citations to the Declaration testimony
of Dr. Jonas Sandsten (Ex. 1006) supporting its contention that it would
have been obvious to combine the Merlin Brochure and Strachan to yield the
camera of the claims. Id. at 34–40, 41–53. FLIR asserts that “[i]t would
have been an obvious design choice to one skilled in the art to replace the
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standard 3-5 μm filter [disclosed in the Merlin Brochure] with a narrower
filter that covers hydrocarbon gases of interest” disclosed in Strachan as a
combination of known elements that yield predictable results. Id. at 34.
FLIR argues that the claimed camera is nothing more than the result
of equipping Petitioner’s own Merlin-MID camera disclosed in the Merlin
Brochure with a custom filter selected to monitor gas as disclosed in
Strachan. Paper 2, 34 (IPR ’411). For example, FLIR contends that the
Merlin Brochure discloses a passive infrared camera that includes a
refrigeration system (a closed-cycle Stirling cryocooler) that contains a
standard 3-5 μm cold filter within the interior of a Dewar flask, and an
infrared sensor device (InSb focal plane array). Id. at 35. FLIR contends
Strachan’s disclosure of the absorption band for multiple hydrocarbon gases
and the selection of an appropriate filter to detect multiple gases, discloses
the “the pass band for the single filter configuration” limitation of claim 1.
Id. at 42–43. Indeed, FLIR further asserts that Strachan discloses that it was
known to use catalogs of infrared absorption spectra for gases to select
filters for use in an infrared camera with a narrow bandpass filter to monitor
and detect hydrocarbon gas and vapor. Id. at 36; see Ex. 1008, 492–493.
FLIR argues that
Strachan shows that at the time of the alleged invention, it was
known in the art to select a filter that covers the absorption
band of more than one gas of interest and to use the selected
filter in a passive infrared camera to detect leaks of the gases of
interest.
Paper 2, 37 (IPR ’411); Ex. 1006 ¶ 80.
With respect to independent claim 1 of the ’813 patent, FLIR shows
that the Merlin Brochure discloses a camera for detecting gas, wherein the
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Merlin Brochure discloses “a single filter configuration” in the bandpass
filter (cold filter) that is less than 200 nm. Paper 2, 20–31 (IPR ’411)(citing
Ex. 1007, 3). FLIR further alleges that Strachan discloses the absorption of
various hydrocarbon gases and the selection of filters for such detection.
Paper 2, 37 (IPR ’411) (citing Ex. 1008, 493). In addition, FLIR asserts that
the Merlin Brochure and Strachan disclose producing visual images of gas
detected at various ambient conditions and temperatures. Paper 2, 40 (IPR
’411) (citing Ex. 1006 ¶ 74; Ex. 1008, 492; Ex. 1007, 3).
In IPR ’065, FLIR asserts that claims 23, 25, 28, and 30, which
depend from independent claim 1, are unpatentable as obvious over the
Merlin Brochure (Ex. 1007) and Strachan (Ex. 1008). Paper 2, 17–26
(claim 1), 26–28 (claims 23, 25, 28, and 30). In support of its contentions,
FLIR provides claim charts and citations to Dr. Sandsten’s testimony (Ex.
1006). Id.
FLIR also contends that claims 23, 33, and 35, which depend from
independent claim 1, are unpatentable as obvious in view of Kulp (Ex. 1012)
and Merlin User’s Guide (Ex. 1011). Paper 2, 41–48 (IPR ’065). FLIR
provides claim charts and citations to the testimony of Dr. Sandsten (Ex.
1006) in support of its contentions. Id. FLIR argues that Kulp discloses all
the limitations of claim 1, expressly or inherently, except for the
“refrigeration portion” limitation of claim 1. Paper 2, 41–43(IPR ’065).
With respect to refrigeration, FLIR argues that it would have been obvious
to locate the cooled filters and array disclosed in Kulp within the
refrigeration portion disclosed in the Merlin User’s Guide as it represents an
obvious design choice. Paper 2, 43–44 (IPR ’065) (citing Ex. 1006 ¶¶ 98–
100).
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FLIR provides claim charts, citations to the testimony of Dr. Sandsten
and analysis in support of its contentions that (1) claims 27, 32–35, and 41
are unpatentable as obvious in view of Merlin Brochure, Strachan, and
Spectrogon (Paper 2, 28–37 (IPR ’065)); and (2) claims 24, 26, 36, and 57
are unpatentable as obvious in view of Merlin Brochure, Strachan, and OCLI
(Paper 2, 38–41 (IPR ’065)). FLIR relies on the filter characteristics
disclosed in Spectrogon and OCLI for “the pass band for the filter
configuration” limitations of dependent claims 24, 26, and 27.
With respect to Kulp (Ex. 1012) and the Merlin User’s Guide
(Ex. 1011), FLIR provides claim charts, analysis and citations to the
testimony of Dr. Sandsten in support of its contentions that Kulp and the
Merlin User’s Guide render dependent claims 23, 33, and 35 (which depend
from claim 1) unpatentable as obvious. Paper 2, 41–48 (IPR ’065). FLIR
asserts the Kulp discloses every limitation of claims 1, 23, 33, and 35, except
for the limitations for “an infrared sensor device located in the interior of the
refrigerated portion” and “a single filter configuration located in the interior
of the refrigerated portion” as recited in claim 1. Id. at 44–47. FLIR argues
that
it would have been obvious, in view of the Merlin User’s
Guide, to modify the camera of Kulp, which already discloses a
cooled filter and a cooled infrared sensor device, to locate both
the cooled filter and cooled infrared sensor device in the interior
of a refrigeration portion, as disclosed in the Merlin User’s
Guide.
Id. at 44; Ex. 1006 ¶¶ 99–100.
With respect to “the pass band for the filter configuration” limitations
of dependent claims 25, 27, 28, 30, 32, 34, and 41, which depend from claim
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1, FLIR provides citations to Spectrogon to disclose the filter characteristics,
in combination with the Kulp and the Merlin User’s Guide to disclose the
limitations of independent claim 1. Paper 2, 48–52 (IPR ’065). Similarly,
FLIR provides citations to OCLI in combination with Kulp and the Merlin
User’s Guide to disclose “the pass band for the filter configuration” and
“optical bandpass filter” limitations of dependent claims 24, 26, 36, and 57.
Id. at 53–54.

2. Petitioner’s ’496 Patent Contentions
FLIR also contends that the Merlin Brochure and Strachan render
claims 1–5 and 9–20 of the ’496 patent obvious. Paper 2, 14–48 (IPR ’434).
FLIR provides claim charts, analysis and citations to the testimony of Dr.
Sandsten in supports of its contentions that independent claim 1, 18, 19, and
20 are unpatentable as obvious in view of the Merlin Brochure and Strachan.
Id. at 14–47.
FLIR asserts that dependent claim 6, which depends from claim 1, is
rendered unpatentable as obvious by Brengman, the Merlin Brochure and
Strachan. Id. at 48–50. Finally, FLIR contends that dependent claim 7,
which depends from claim 1, is rendered unpatentable as obvious by Hart,
the Merlin Brochure and Strachan. Id. at 50–51. In support of its
contentions, FLIR provides claim charts and citations to the testimony of
Dr. Standsten showing that the combination of the Merlin Brochure and
Strachan with Hart or Brengman discloses the limitations of dependent
claims 6 and 7. Id. at 48–51.

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3. Patent Owner Contentions
LSI contends that FLIR has not met its burden because none of the
asserted prior art teaches a system for detecting or visualizing gas leaks
under (1) “variable ambient conditions” as recited in the challenged
independent claims or (2) using a “single filter configuration located in the
interior of the refrigerated portion” as recited in the challenged claims.
PO Resp. 1–2. LSI also argues that FLIR fails to articulate a fact-based
rational underpinning for a person of ordinary skill in the art to combine the
references. Id. at 2. Instead, LSI argues that the prior art teaches away from
use of passive-IR to detect gas leaks. Id. Finally, LSI asserts that secondary
considerations of non-obviousness show that the invention is non-obvious.
Id. at 2–3. We address LSI’s contentions below.

a. “Variable Ambient Conditions” and
“Under “Normal Operating Conditions”
LSI contends that the inventive feature that differentiates the patents
at issue from the prior art is the detection of leaks in the “real-world” setting.
PO Resp. 24. The claim limitations requiring detection under “variable
ambient conditions” (all challenged claims) and “normal operating
conditions” (the challenged claims of the ’496 patent). As discussed above,
we disagree with LSI’s contention that ambient conditions and normal
operating conditions require operating under a “full range of normal
operating conditions, such as different temperatures or sunlight; and would
not encompass prior art systems that could image gases only within a narrow
range of field conditions, such as temperature.” Id. at 27.
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We are not persuaded by LSI because the claims at issue do not
require imaging gas under any specific conditions. At oral argument, LSI
argued that “the claims cover essentially or require a camera that can image
a gas under the range of expected ambient—variable ambient conditions
around the leak. . . . . [I]n order for this to work in the field that’s what it has
to do.” Tr. 62:7–11. However, LSI concedes that claims at issue do not
specify what the normal operating conditions would be and that such
conditions would vary depending on the application. Tr. 62:23–24, 63:6–8.
LSI’s restrictive reading of the claims is not supported by the specifications
or claims of the ’496 or ’813 patents. As discussed above, we conclude that
the broadest reasonable construction of “variable ambient conditions” (all
challenged claims) and “normal operating conditions” (the challenged
claims of the ’496 patent) is the ambient conditions of the area around the
leak.
Accordingly, we are not persuaded by LSI’s argument that the
imaging of gas in Strachan and Kulp under artificial or controlled conditions
means that it does not teach the claim limitations for “variable ambient
conditions” and “normal operating conditions.” PO Resp. 28–30. For
example, LSI’s expert, Dr. Martini, agreed that Kulp only monitored the
ambient temperature of the test, and did not strictly control the temperature.
Ex. 1032, 42:11–43:7. Indeed, Kulp only discloses a passive IR system that
imaged a gas plume whose shape and concentration was controlled as part of
the test comparing active and passive IR gas detection. Ex. 1012, 270, 275.
Although Kulp uses a sandpaper backdrop in his test, we credit the cross-
examination testimony of LSI’s expert Dr. Martini, who testified that the
sandpaper was used to mimic the earth’s surface and was used to maintain
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consistency between the tests of the active versus passive IR systems.
Ex. 1032, 65:5–66:25.
We also disagree with LSI’s characterization of Kulp as requiring that
certain temperature and/or emissivity differences between gas and the
background must always exist to image gas. PO Resp. 15. We agree with
FLIR that Kulp’s discussion of the differences in temperature between the
gas and background acknowledges that some Delta-T (temperature
difference between the background and target gas) is necessary for a passive
IR system to detect gas. Reply 11 (citing Ex. 1036 ¶¶ 50, 53). We also
credit the testimony of FLIR’s witness, Dr. Sandsten, over LSI’s witness,
Dr. Martini, that Kulp imaged gases at different times of the day and at
different temperatures. Ex. 1006 ¶ 55.
Furthermore, we are also not persuaded by LSI’s proffered testimony
characterizing Strachan as only imaging gases under artificially uniform
conditions. PO Resp. 28 (citing Ex. 2084 and Ex. 2051). Because the ’813
and ’496 patent do not specify any particular conditions, LSI’s argument and
testimony is not consistent with what the claims require. Second, we do not
find the testimony of Dr. Martini (Ex. 2084), Dr. Hausler and Dr. Hossack
(Ex. 2051) cited by LSI to be persuasive on the disclosure of Strachan.
PO Resp. 28. As Dr. Hausler, an LSI expert, stated under cross-
examination, the physics of whether gas can be imaged depend on the
relative difference in temperature (Delta-T) between the gas and the
background, regardless of whether the conditions are controlled or
uncontrolled. Ex. 1029, 83:9–84:3. We find that Strachan discloses that
practical quality images of hydrocarbon gas can be obtained at various
temperatures. Ex. 1008, 497; Reply 9. We also find that a person of
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ordinary skill in the art would understand that the study disclosed in
Strachan is done to explore the feasibility of imaging gas in uncontrolled
settings. See Ex. 1030, 71:19–24. Accordingly, we find that both Strachan
and Kulp disclose the ambient or normal conditions recited in the challenged
claims.

b. “visible image of a leak” with a “single filter configuration”
LSI contends that the Merlin Brochure and Merlin User’s Guide do
not disclose producing a “visible image of a leak” with a “single filter
configuration” as recited in the challenged claims. PO Resp. 35–38. We do
not agree. First, we do not find convincing the testimony of Dr. Parrish
(Ex. 2068) or Dr. Martini (Ex. 2084) regarding the filter wheel location in
the Merlin references or whether the Merlin references read on the “single
filter configuration” limitation. PO Resp. 35–38.
Second, the Merlin Brochure states that the chemical signatures in
aircraft, rocket and missile exhaust can be performed with the “filter wheel
option available for the Merlin Lab camera [which] permits wavelength
selectivity for spectroscopy and signature analysis.” Ex. 1007, 3; Ex. 1036
¶ 66. We credit FLIR’s witness, Dr. Sandsten, that this filter option is
described as a cold filter and an InSb detector which supports that a person
of ordinary skill in the art would understand that it is located in the single
cooling unit of the disclosed camera. Ex. 1007, 6; Ex. 1006 ¶ 71; Ex. 1036
¶ 71. Indeed, Dr. Parrish, LSI’s witness, agrees that the Merlin Brochure
describes the cold filter and InSb detector as being located in the Dewar
(refrigeration unit). Ex. 1033, 33:14–17. The Merlin User’s Guide also
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contains similar disclosure regarding the cold filter. Ex. 1011, 1–2, 51. Ex.
1039 ¶ 98.
We also disagree with LSI’s narrow understanding of a person of
ordinary skill in the art as being limited to inserting a filter in the optical
path outside of the refrigeration unit. PO Resp. 37. “A person of ordinary
skill is also a person of ordinary creativity, not an automaton.” KSR Int’l
Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007). We find that the Merlin
Brochure or Merlin User’s Guide teaches that cold filter can be factory-
optimized for wavelength selectivity. Ex. 1007, 2; Reply 7. In addition, we
find that FLIR has shown by a preponderance of the evidence that the prior
art recognized the practical use of cold filters. Ex. 1036 ¶ 79; see Ex. 2027,
114 (stating that the filter should be “cryogenically cooled along with the
[detector]” to “achieve the full effect of a narrow-band imaging system”).
In sum, we are not persuaded by FLIR that the combination of the
Merlin User’s Guide with Kulp or the Merlin references with Strachan fails
to disclose “a single filter configuration located in the interior of the
refrigerated portion” as recited in the challenged claims.

c. “visually detecting the leak based on the visible image under
the variable ambient conditions” and “visually detecting a
gas leak . . . emanating from a component of a group of
components in different locations”
The challenged claims of the ’496 patent recite “visually detecting the
leak based on the visible image under the variable ambient conditions.”
LSI argues that the Merlin Brochure and Strachan cannot “detect” a
leak because the references visually image known emissions whose location
and composition are controlled. PO Resp. 39–40. As discussed above, we
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construed “leak” to include known or unknown emissions. We do not agree
with LSI that “visually detecting” is not taught in the Merlin Brochure,
which discloses imaging of jet exhaust and detection of chemical signatures
in the exhaust. Ex. 1007, 3. Thus, LSI’s arguments are not well founded.
We also are not persuaded by LSI’s argument that Merlin Brochure
does not disclose detecting leaks from a group of components. PO Resp.
41–42. We find that the exhaust from an aircraft indicates that the Merlin
Brochure discloses monitoring of a group of components that make up the
aircraft exhaust. See Reply 6 n.2. Indeed, the image in the Merlin Brochure
shows imaging half of an aircraft and not only the aircraft’s exhaust. Ex.
1007, 3.

d. Reason to Combine and Teaching Away
LSI argues that a person of ordinary skill in the art would not have
combined the teachings of the cited references because the references teach
away from the passive infrared configuration. We disagree.
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the [inventor].” In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). A reference does not teach away, however, if it merely
expresses a general preference for an alternative invention but does not
“criticize, discredit, or otherwise discourage” investigation into the invention
claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). We will not,
however, “read into a reference a teaching away from a process where no
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such language exists.” DyStar Textilfarben GmbH & Co. Deutschland KG
v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006).
LSI’s evidence that the Merlin references disclose an emission based
instrument and that Kulp and Strachan disclose an absorption based
instrument, does not show that the references teach away from their
combination. Indeed, LSI’s citation to the testimony of Dr. Martini does not
demonstrate that the Merlin references discourage their combination with
Strachan or Kulp. To the contrary, the record shows that a person of
ordinary skill in the art would have combined the filter teachings of Strachan
with the camera disclosed in the Merlin references. Ex. 1030, 50:1–16,
84:14–85:19, 87:16–88:19, 160:4–14; see Ex. 1036 ¶ 22. Although LSI’s
witness, Dr. Hossack, disputes where the filter would have been placed on a
Merlin camera, he does not dispute that Strachan discloses modifying a
similar camera to detect gas. Ex. 1030, 50:1–16, 84:14–85:19, 87:16–88:19;
160:4–14.
LSI’s argument that the combinations of the Merlin camera disclosed
in the Merlin references would destroy the intended functionality of the
camera and fundamentally alter its principle of operation is equally
unpersuasive. See PO Resp. 49–52. LSI has not shown that modification of
the Merlin camera as disclosed in the Merlin User’s Guide or Brochure
would no longer be useful for imaging gas as described. We credit the
testimony of Dr. Sandsten in finding that the Merlin MID operates on the
principles of thermography before and after modification as disclosed in
Kulp and Strachan. Ex. 1036 ¶ 74. In addition, modification of such a
camera is expressly taught by Strachan and Kulp. Therefore, regardless of
whether the possibility of modifying the Merlin MID camera was disclosed
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in the Merlin references, the combination of Kulp and/or Strachan with the
Merlin references teaches one of ordinary skill in the art that the standard
filter could be replaced in a passive IR camera, such as the Merlin MID, to
improve imaging. See, e.g., Ex. 1030, 50:1–16, 84:14–85:19, 87:16–88:19;
160:4–14; Reply 15. Indeed, Strachan and Kulp both disclose that gas can
be successfully imaged by optimizing the spectral selectivity of a passive IR
system using a narrow bandpass filter tuned to the gases of interest. Kulp
specifically discloses that a cold filter and Strachan includes a Dewar flask
for cooling. Ex. 1008, 493; Ex. 1012, 270. LSI’s arguments regarding the
modifications of the camera disclosed in the Merlin references fail to address
the teachings of the Merlin references in combination with Kulp and/or
Strachan. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) (attacking
references individually cannot demonstrate nonobviousness; rather, the test
is what the combined teachings of the references would have suggested to
one of ordinary skill in the art).
LSI’s contention that the references themselves teach away from their
combination is mistaken. See PO Resp. 52–61. We are not persuaded by
LSI’s evidence and testimony that a person of ordinary skill in the art would
have selected a different Merlin camera for gas detection and placed a warm
filter behind the lens or on a filter wheel rather than insert a narrow bandpass
cold filter into the Dewar. PO Resp. 52–57. The fact that the Merlin
Brochure discloses multiple cameras for imaging gas does not indicate that it
discourages the use of the Merlin MID camera over the uncooled
Microbolometer camera. Reply 16. We find that a person of ordinary skill
in the art interested in imaging gas within the range of the Merlin MID
camera would have modified the filter as disclosed by Strachan and Kulp.
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Reply 13. Use of the cold filters disclosed in Strachan and Kulp in the
camera of the Merlin references amounts to use of a known element for its
known use to achieve an expected result. KSR, 550 U.S. at 416.
We also disagree with LSI’s argument that Strachan and Kulp both
teach that passive IR does not work under normal operating (or variable)
ambient conditions, such that a person of ordinary skill in the art would not
look to a passive IR system as a solution for gas leak detection in the field.
PO Resp. 59. LSI’s characterization of Strachan and Kulp is not supported
by the plain reading of the references themselves, which do not criticize,
discredit, or otherwise discourage use of passive IR. To the contrary,
Strachan and Kulp expressly describe imaging gas using passive IR imaging
with appropriate narrow cold filters and suggest improvements for future
passive IR gas imaging systems. See Ex. 1008, 493; Ex. 1012, 270. In
addition, LSI’s erroneous understanding of Strachan and Kulp is based on
the narrow construction of normal operating (or variable) ambient
conditions, which we previously rejected.
Finally, we are not persuaded by LSI’s argument that active IR or
warm filtering are taught in Strachan and Kulp as solutions for imaging gas
where the temperature difference between the gas and background is small,
(the low Delta-T problem). PO Resp. 60. The claims at issue in the
challenged patents do not require any specific operating conditions, nor do
they require any specific low or high Delta-T. Thus, we are not persuaded
by Dr. Martini’s testimony that Kulp and Strachan teach away when there is
a low Delta-T. PO Resp. 58–60.
Even assuming that the Merlin Brochure does not disclose
modification of the cold filter as LSI argues, such an omission is not
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teaching away. In addition, with respect to LSI’s arguments regarding the
permanence of the modification, this also is not teaching away. Choosing
where to modify the Merlin MID camera as disclosed in the Merlin
Brochure or Merlin User’s Guide with the cold filter disclosed in Kulp or
Strachan is a simple design choice. The preponderance of the evidence
indicates that several prior art references taught putting cold filters
narrowband filters inside the refrigerator portion to improve imaging of gas.
Ex. 2027, 114; Ex. 1031, 39:22–41:10 (stating that it was known to put the
filter and sensor in the same refrigerator portion).
We also do not agree with LSI’s frequent reference to FLIR’s analysis
as being based on hindsight. PO Resp. 23, 61, 66–70. LSI’s argument
mischaracterizes the disclosures of the prior art, in particular Strachan and
Kulp, and ignores the contemporary evidence that filters should be cooled to
improve narrowband imaging systems. See Ex. 1008, 497; Ex. 1012, 276;
Ex. 2027, 114; Ex. 1031, 18:19–19:21, 53:17–54:2; Ex. 1033, 33:14–17,
35:10–36:7; Ex. 1030, 97:21–24; Ex. 1032, 110:20–111:6; Ex. 1039 ¶¶ 98–
101; Ex. 1045 ¶ 5.
Based on the full record, we find, by a preponderance of the evidence,
that FLIR has provided articulated reasons with rational underpinnings for
the proposed combinations of prior art. FLIR’s evidence shows that
combinations of the Merlin Brochure with Strachan or the Merlin User’s
Guide with Kulp is the combination of known elements that yield
predictable results. See Paper 2, 17–18 (citing Ex. 1006 ¶ 55), 20–21 (citing
Ex. 1006 ¶ 60) (IPR ’065); Paper 2, 37–38 (citing Ex. 1006 ¶ 81) (IPR ’411).
In addition, we find by a preponderance of the evidence that the prior art
demonstrates that it would have been an obvious design choice to one skilled
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in the art to replace the filters disclosed in Strachan and Kulp to target
hydrocarbon gases of interest using the camera disclosed in the Merlin
Brochure and Merlin User’s Guide. Paper 2, 38–39 (citing Ex. 1006 ¶¶ 81–
82) (IPR ’411). Accordingly, we do not agree with LSI that FLIR’s expert
testimony is conclusory. PO Resp. 23, 61, 67–68.

4. Secondary Considerations
LSI argues that there is overwhelming evidence that demonstrates the
nonobviousness of the challenged claims. PO Resp. 74–83. In evaluating
whether an invention would have been obvious, “[s]uch secondary
considerations as commercial success, long felt but unsolved needs, failure
of others, etc., might be utilized to give light to the circumstances
surrounding the origin of the subject matter sought to be patented.” Graham
v. John Deere Co., 383 U.S. 1, 17–18 (1966). While the party seeking to
demonstrate nonobviousness has the burden to introduce evidence
supporting such objective indicia, see In re Huang, 100 F.3d 135, 139 (Fed.
Cir. 1996), the ultimate burden of persuasion never shifts to Patent Owner,
see 35 U.S.C. § 316(e).
Objective indicia should be considered along with all of the other
evidence in making an obviousness determination. See Eurand, Inc. v.
Mylan Pharm. Inc. (In re Cyclobenzaprine Hydrochloride Extended–Release
Capsule Patent Litig.), 676 F.3d 1063, 1076–77 (Fed. Cir. 2012) (“It is to be
considered as part of all the evidence, not just when the decisionmaker
remains in doubt after reviewing the art.”) (quoting Stratoflex, Inc. v.
Aeroquip Corp., 713 F.2d 1530, 1538–39 (Fed. Cir. 1983)). Factual
inquiries for an obviousness determination include secondary considerations
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based on evaluation and crediting of objective evidence of nonobviousness.
Graham, 383 U.S. at 17. Secondary considerations may include any of the
following: long-felt but unsolved needs, failure of others, unexpected
results, commercial success, copying, licensing, and praise.
“For objective evidence to be accorded substantial weight, its
proponent must establish a nexus between the evidence and the merits of the
claimed invention.” GPAC, 57 F.3d at 1580. In particular, the objective
indicia “must be tied to the novel elements of the claim at issue” and must
“‘be reasonably commensurate with the scope of the claims.’” Institut
Pasteur & Universite Pierre Et Marie Curie v. Focarino, 738 F.3d 1337,
1347 (Fed. Cir. 2013) (quoting Rambus Inc. v. Rea, 731 F.3d 1248, 1257
(Fed. Cir. 2013)).
LSI provides voluminous evidence the inventor, David Furry,
modified an Indigo MID camera (now manufactured by FLIR) to produce a
prototype passive infrared camera and achieve unexpected results. PO Resp.
75 (citing Ex. 2068 ¶¶ 15, 18, 30–38; Ex. 2063 ¶¶ 28–29; Ex. 2051 ¶ 80).
LSI contends that Mr. Furry’s modified camera “allowed the operator to
quickly and efficiently identify the source of hydrocarbon leaks, and,
perhaps most importantly for field use, it worked under normal plant
operating conditions and variable ambient conditions, such as variable
atmospheric temperatures and wind conditions.” PO Resp. 75 (emphasis
added) (citing Ex. 2082, 001–002, 005, 007, 013–16, 17–32, 33–38).
As discussed above, the challenged claims do not recite or require any
specific conditions. Indeed, the challenged claims require imaging of known
or unknown gas under “some” operating conditions. Thus, there is no nexus
that is tied to the novel elements of the claims at issue or that are reasonably
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commensurate with the scope of the claims. Contrary to LSI’s position that
the Furry camera was the only solution that worked at field trials of leak
detection systems (PO Resp. 75–76), the evidence shows that all of the
tested imaging systems successfully imaged gas. Ex. 2009,
ES-7–ES-9, 2-15, 4-11; Ex. 1036 ¶ 109. The record shows that Kulp and
Strachan both successfully imaged gas using passive IR cameras with
appropriate cold filters.
Although there is evidence that the FLIR-marketed GasFindIR camera
that was initially licensed by Mr. Furry and LSI was a market leader for leak
detecting cameras (PO Resp. 76–77), LSI has not shown a sufficient nexus
between the novel elements of the claims at issue and the GasFindIR camera
or its predecessors.

a. Long Felt Need
LSI contends that the long felt need to find alternatives to the EPA’s
Method 21 for leak detection and repair and the failure of others to find a
workable solution supports its contentions of nonobviousness. PO Resp.
77–78. “Evidence that an invention satisfied a long-felt and unmet need that
existed on the patent’s filing date is a secondary consideration of
nonobviousness.” Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324,
1332 (Fed. Cir. 2009). To show a long-felt need, LSI must introduce
evidence to show when such a need first arose and how long this need was
felt, and must introduce evidence to show that this need was met by the
patented invention. See id. “[L]ong-felt need is analyzed as of the date of
an articulated identified problem and evidence of efforts to solve that
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problem.” Tex. Instruments, Inc. v. U.S. Int’l Trade Comm’n, 988 F.2d
1165, 1178 (Fed. Cir. 1993).
As discussed above, LSI has not provided persuasive evidence
showing the intrinsic nexus to the challenged claims and how the claimed
invention resolved the long-felt need. Although evidence shows that
camera-based solutions have been adopted as alternatives to the EPA’s
Method 21, the cameras are not limited to LSI’s claimed passive camera.
Ex. 1034, 90:5–14, 96:2–97:1. Indeed, LSI has not shown that the claimed
invention created the alternative to Method 21. Instead, we find that the
evidence shows that active and passive IR cameras successfully imaged gas
emissions in the API tests and in the prior art. Ex. 2009, ES-7–ES-9, 2-15,
4-11; Ex. 1008; Ex. 1012. The novel functions and features that LSI
identifies as necessary “to develop a workable solution for imaging gas
leaks” and the failure of others to find a workable solution are not
commensurate in scope with the challenged claims, which broadly require
imaging gas at some variable ambient conditions.

b. Skepticism of Others and Teaching Away
We are not persuaded by LSI’s evidence that the prior art teaches
away from the use of modified passive IR cameras for gas leak detection.
PO Resp. 78–79. For the reasons discussed above, we do not find that the
prior art references teach away from their combination. In addition, LSI’s
evidence of skepticism of others does not show evidence based on the
claimed limitations of the challenged patents. At best, LSI’s evidence shows
the business-related issues Mr. Furry encountered in obtaining and
modifying the passive IR camera. PO Resp. 79 (citing Ex. 2068 ¶¶ 16, 21;
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Ex. 2176–Ex. 2178 (deposition exhibits to Ex. 2063)). Indeed, evidence
shows that financial considerations in the ordering and modifications
prompted the skepticism LSI cites. Ex. 1031, 149:25–152:11. In addition,
LSI’s evidence of unexpected results when Mr. Furry built his passive IR
camera is not commensurate with the scope of the challenged claims, nor do
they comport with the prior art, Strachan and Kulp, which disclose imaging
gas at variable conditions.

c. Commercial Success, Copying, and Industry Praise
Commercial success is relevant only if it flows from the merits of the
invention claimed. Sjolund v. Musland, 847 F.2d 1573, 1582 (Fed. Cir.
1988). Thus, a “nexus” is required between the merits of the claimed
invention and any objective evidence of nonobviousness offered, if that
evidence is to be given substantial weight en route to a conclusion on
obviousness. Stratoflex, 713 F.2d at 1539; see also Ormco Corp. v. Align
Tech., Inc., 463 F.3d 1299, 1311–12 (Fed. Cir. 2006) (“Evidence of
commercial success, or other secondary considerations, is only significant if
there is a nexus between the claimed invention and the commercial
success.”).
LSI has presented evidence that FLIR developed and marketed its
GasFindIR camera under license and a business development agreement.
PO Resp. 81–82. However, LSI has not sufficiently tied the success to the
novel elements of the claim at issue. Indeed, the unmodified Merlin MID
camera as disclosed in the Merlin references predates the GasFindIR camera
and Mr. Furry’s Hawk camera, which LSI contends FLIR copied. PO Resp.
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81 (stating that FLIR “took the specifications for David Furry’s Hawk
camera and copied them exactly to make the GasFindIR camera”)
Even assuming arguendo that the GasFindIR camera is a copy of
Mr. Furry’s Hawk Camera and shows evidence of commercial success, the
only feature LSI identifies with a nexus to the claimed invention that is not
present in the preexisting Merlin MID camera is the use of a narrowband
cold filter that is described in marketing material for the GasFindIR camera.
PO Resp. 81 (citing Ex. 2082, 020). Such objective evidence of
nonobviousness cannot overcome the disclosures that narrowband cold
filters were disclosed in the prior art, Kulp and Strachan. See Tokai Corp. v.
Easton Enters., Inc., 632 F.3d 1358, 1371 (Fed. Cir. 2011).
LSI also has failed to show that the commercial praise (PO Resp. 82–
83) is due to novel aspects of the claimed invention. For example, LSI’s
emphasis on Mr. Furry inventing the first “working system for imaging gas
leaks under variable field conditions” (PO Resp. 83 (citing Ex. 2068 ¶¶ 33–
35)) is not commensurate in scope with the claims which are not limited to
working under field conditions as LSI asserts.

d. Secondary Consideration Conclusion
Where the evidence shows that the commercial success derived from
some aspect of the prior art, or was the result of economic and commercial
factors unrelated to the claimed limitations, evidence of commercial success
will not be sufficient to demonstrate nonobviousness of a claimed invention.
See In re DBC, 545 F.3d 1373, 1384 (Fed. Cir. 2008); see also Tokai, 632
F.3d at 1369–70 (finding that secondary considerations did not overcome
obviousness case).
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In the present case, even where evidence of commercial success and
copying is present, the nexus between the claimed invention and secondary
consideration evidence that LSI relies on is not commensurate with the
claims at issue. Having considered the full record, we find that LSI’s
evidence of secondary considerations, including evidence of commercial
success, copying and industry praise, does not outweigh FLIR’s strong
prima facie case of obviousness. See Tokai, 632 F.3d at 1370; see also
Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010) (discussing
cases). LSI’s evidence regarding normal field condition success is not
commensurate in scope with the patent claims at issue, nor are they
compelling enough to rebut the strong prima facie showing of obviousness.

5. Conclusion as to Obviousness
Based on the full record including LSI’s evidence of secondary
considerations, we find that FLIR has shown by a preponderance of the
evidence in IPR2014-00411 that the Merlin Brochure and Strachan disclose
claims 1–4, 6, 8–22, 31, 37–40, 42–56, and 58 of the ’813 patent; the Merlin
Brochure, Strachan, and Piety disclose claims 5 and 7 of the ’813 patent; the
Merlin Brochure and Strachan disclose claims 1–5 and 9–20 of the ’496
patent; the Merlin Brochure, Strachan, and Brengman disclose claim 6 of the
’496 patent; and the Merlin Brochure, Strachan, and Hart disclose claim 7 of
the ’496 patent.
Finally, in IPR2015-00065, FLIR has shown by a preponderance of
the evidence that the Merlin Brochure and Strachan disclose claims 23, 25,
28, and 30 of the ’813 patent; the Merlin Brochure, Strachan, and
Spectrogon disclose claims 27, 32–35, and 41 of the ’813 patent; the Merlin
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Brochure, Strachan, and OCLI disclose claims 24, 26, 36, and 57 of the ’813
patent; the Merlin User’s Guide and Kulp disclose claims 23, 33, and 35 of
the ’813 patent; the Merlin User’s Guide, Kulp, and Spectrogon disclose 25,
27, 28, 30, 32, 34, and 41 of the ’813 patent; and the Merlin User’s Guide,
Kulp, and OCLI disclose 24, 26, 36, and 57 of the ’813 patent.

F. Motions to Seal
LSI filed unredacted and redacted versions of the Patent Owner
Response (Papers 51 and 64 (IPR ’411)) and redacted exhibits (Ex. 2073,
Ex. 2074, and Ex. 2082) along with unopposed Motions to Seal (Papers 48,
61, and 98), a default protective order (Paper 49) and stipulated protective
order (Paper 50). Identical redacted papers, unopposed motions, and
protective orders were filed in IPR2015-00065 (see Papers 34, 35, 36, 37;
Ex. 2113, Ex. 2114, Ex. 2122).
There is a strong public policy in favor of making information filed in
an inter partes review open to the public, especially because the proceeding
determines the patentability of claims in an issued patent and, therefore,
affects the rights of the public. Under 35 U.S.C. § 316(a)(1) and
37 C.F.R.§ 42.14, the default rule is that all papers filed in an inter partes
review are open and available for access by the public; however, a party may
file a concurrent motion to seal and the information at issue is sealed
pending the outcome of the motion. It is only “confidential information”
that is protected from disclosure. 35 U.S.C. § 316(a)(7); see Office Patent
Trial Practice Guide, 77 Fed. Reg. 48,756, 48,760 (Aug. 14, 2012).
The standard for granting a motion to seal is “for good cause.”
37 C.F.R. § 42.54(a). The party moving to seal bears the burden of proof in
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showing entitlement to the requested relief, and must explain why the
information sought to be sealed constitutes confidential information.
37 C.F.R. § 42.20(c). As set forth in the Office Patent Trial Practice Guide,
there is an expectation that information will be made public if identified in
this Final Written Decision. 77 Fed. Reg. at 48,761.
Based on our review, we conclude that Exhibits 2073, 2074, and 2082
in IPR ’411 and Exhibits 2113, 2114, and 2122 in IPR ’065 and the
unredacted Patent Owner Response currently filed under seal contain
confidential business information. The contents of those documents that are
asserted as constituting confidential business information have not been
relied upon in this Final Written Decision. We are persuaded that good
cause exists to have those documents remain under seal.
16

III. CONCLUSION
In IPR2014-00411, FLIR has demonstrated by a preponderance of the
evidence that claims 1–22, 31, 37–40, 42–56, and 58 of the ’813 patent, and
claims 1–7 and 9–20 of the ’496 patent are unpatentable based on the
following grounds of unpatentability:

16
The sealed documents record will be maintained undisturbed pending the
outcome of any appeal taken from this Final Written Decision. At the
conclusion of any appeal proceeding, or if no appeal is taken, the documents
will be made public. See Office Patent Trial Practice Guide, 77 Fed. Reg. at
48,760–61. Either party may file a motion to expunge the sealed documents
from the record pursuant to 37 C.F.R. § 42.56. Any such motion will be
decided after the conclusion of any appeal proceeding or the expiration of
the time period for appealing.
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(1) Claims 1–4, 6, 8–22, 31, 37–40, 42–56, and 58 of the ’813 patent
under 35 U.S.C. § 103(a) over the Merlin Brochure and Strachan;
(2) Claims 5 and 7 of the ’813 patent under 35 U.S.C. § 103(a) over
the Merlin Brochure, Strachan, and Piety;
(3) Claims 1–5 and 9–20 of the ’496 patent under 35 U.S.C. § 103(a)
over the Merlin Brochure and Strachan;
(4) Claim 6 of the ’496 patent under 35 U.S.C. § 103(a) over the
Merlin Brochure, Strachan, and Brengman; and
(5) Claim 7 of the ’496 patent under 35 U.S.C. § 103(a) over the
Merlin Brochure, Strachan, and Hart.
In IPR2015-00065, FLIR has demonstrated by a preponderance of the
evidence that claims 23–28, 30, 32–36, 41, and 57 of the ’813 patent are
unpatentable based on the following grounds of unpatentability:
(1) Claims 23, 25, 28, and 30 of the ’813 patent under 35 U.S.C.
§ 103(a) over the Merlin Brochure and Strachan;
(2) Claims 27, 32–35, and 41of the ’813 patent under 35 U.S.C.
§ 103(a) over the Merlin Brochure, Strachan, and Spectrogon;
(3) Claims 24, 26, 36, and 57 of the ’813 patent under 35 U.S.C.
§ 103(a) over the Merlin Brochure, Strachan, and OCLI;
(4) Claims 23, 33, and 35 of the ’813 patent under 35 U.S.C. § 103(a)
over the Merlin User’s Guide and Kulp;
(5) Claims 25, 27, 28, 30, 32, 34, and 41 of the ’813 patent under
35 U.S.C. § 103(a) over the Merlin User’s Guide, Kulp, and Spectrogon; and
(6) Claims 24, 26, 36, and 57 of the ’813 patent under 35 U.S.C.
§ 103(a) over the Merlin User’s Guide, Kulp, and OCLI.
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IV. ORDER
For the reasons given, it is
ORDERED that, based on a preponderance of the evidence, claims 1–
28 and 30–58 of U.S. Patent No. 8,426,813 and claims 1–7 and 9–20 of U.S.
Patent No. 8,193,496 are held unpatentable; and
FURTHER ORDERED that, because this is a Final Written Decision,
parties to this proceeding seeking judicial review of our Decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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Petitioner:

Joe Hetz
jhetz@brinksgilson.com

Richard DeMille
redemille@brinksgilson.com

Ralph Gabric
rgabric@brinksgilson.com

Russell Emerson
russell.emerson.ipr@haynesboone.com

Patent Owner:

Richard Black
blacr@foster.com

Joel Ard
Ardjo@foster.com

Phillip Born
bornp@foster.com

G. Donald Puckett
donald.puckett@skiermonpuckett.com

Rajkumar Vinnakota
kumar.vinnakota@skiermonpuckett.com