HART Communication Foundationv.SIPCO, LLC

Patent Trial and Appeal Board

Nov 13, 2015

11395685 (P.T.A.B. Nov. 13, 2015)

Trials@uspto.gov Paper 36
571-272-7822 Entered: November 13, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

HART COMMUNICATION FOUNDATION,
Petitioner,

v.

SIPCO, LLC,
Patent Owner.
____________

Case IPR2014-00751
Patent 7,468,661 B2
____________

Before FRANCISCO C. PRATS, NEIL T. POWELL, and
PATRICK M. BOUCHER, Administrative Patent Judges.

BOUCHER, 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
HART Communication Foundation (“Petitioner”) filed a corrected
Petition (Paper 7, “Pet.”) pursuant to 35 U.S.C. §§ 311–319 to institute an
inter partes review of claims 1–14 of U.S. Patent No. 7,468,661 B2 (“the
’661 patent”). After consideration of a Preliminary Response (Paper 12)
filed by Sipco, LLC (“Patent Owner”), the Board instituted trial with respect
to claims 1–4 and 9–13 on November 17, 2014. Paper 15 (“Dec.”).
During the trial, Patent Owner timely filed a Patent Owner Response
(Paper 22, “PO Resp.”), and Petitioner timely filed a Reply to the Patent
Owner Response (Paper 25, “Reply”). Patent Owner also filed Observations
on Cross Examination of Petitioner’s witness, Mr. Raymond Gannon (Paper
29), and Petitioner filed a Reply to the Observations (Paper 32). An oral
hearing was held on July 15, 2015. Paper 35 (“Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). This Decision is a Final
Written Decision under 35 U.S.C. § 318(a) as to the patentability of the
claims on which we instituted trial. Based on the record before us, Petitioner
has demonstrated, by a preponderance of the evidence, that claims 2–4 of the
’661 patent are unpatentable, but has not demonstrated that any other claim
for which trial was instituted is unpatentable.

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B. Related Proceedings
Petitioner asserts that it “is not a party in, nor a real-party-in-interest
to a party in, any judicial or administrative matter that would affect, or be
affected by, a decision in this proceeding.” Pet. 1. Patent Owner identifies
the following judicial matters involving the ’661 patent: Sipco, LLC v.
Comcast Corp., 9:2011-cv-80999 (S.D. Fla.); Sipco LLC v. Control4 Corp.,
1:2011-cv-00612 (N.D. Ga.) (transferred from E.D. Tex., No. 6:2010-CV-
0249); Siemens Industry, Inc., v. Sipco, LLC, 1:2010-cv-2478 (N.D. Ga.);
Sipco LLC v. Datamatic, Ltd., 6:2009-cv-00532 (E.D. Tex.); Silver Spring
Networks, Inc. v. Sipco, LLC, 1:09-CV-2214 (N.D. Ga.); and Sipco, LLC v.
Florida Power & Light Co., 1:09-CV-22209 (S.D. Fla.). Paper 14, 2.1

C. The ’661 Patent (Ex. 1001)
The ’661 patent claims the benefit of several earlier filing dates
through a series of continuation and continuation-in-part applications
through to provisional application No. 60/146,817, filed August 2, 1999.
Patent Owner does not contest the availability of any of the references relied
on by Petitioner as prior art. Petitioner also does not contend that any claim
of the ’661 patent has an effective filing date later than August 2, 1999,
which we accord as the effective filing date for each of the claims on which
we instituted trial.

1 The Petition identifies some, but not all, of these judicial matters. Pet. 1–2.

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The ’661 patent relates to “a computerized system for monitoring,
reporting on, and controlling remote systems by transferring information
signals through a wide area network (WAN) and using software applications
hosted on a connected server to appropriately process the information.”
Ex. 1001, col. 1, ll. 34–38. Figure 2 of the ’661 patent is reproduced below.

Figure 2 is a block diagram that illustrates a control system. Id. at col. 6,
ll. 50–53. Control system 200 includes one or more sensor/actuators 212,
214, 216, 222, and 224 that are integrated with a transceiver, as well as
stand-alone transceivers 211, 213, 215, and 221. Id. at col. 6, ll. 53–55,
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col. 7, ll. 3–4. Each of the stand-alone and integrated transceivers may be
configured to receive an incoming radio-frequency (“RF”) transmission and
to transmit an outgoing signal, which may be an RF or other type of signal.
Id. at col. 7, ll. 4–12.
Local gateways 210 and 220 receive data transmissions from the
various stand-alone or integrated transceivers, analyze the received
transmissions, convert the transmissions to TCP/IP format, and
communicate the transmissions via WAN 230. The local gateways may
communicate information, service requests, control signals, etc. to remote
sensor/actuator transceiver combinations from server 260, laptop computer
240, and workstation 250 across WAN 230.

D. Illustrative Claim
Independent claim 1 is illustrative of the claims at issue:
1. A system for remote data collection, assembly, storage, and
event detection and reporting, comprising:
a computer configured to execute at least one computer
program that formats and stores select information for retrieval
upon demand from a remotely located device, said computer
integrated with a wide area network (WAN);
a plurality of transceivers dispersed geographically at
defined locations, each transceiver electrically interfaced with a
sensor and configured to receive select information and
identification information transmitted from another nearby
wireless transceiver electrically interfaced with a sensor in a
predetermined signal type and further configured to wirelessly
retransmit in the predetermined signal type the select
information, the identification information associated with the
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nearby wireless transceiver, and transceiver identification
information associated with the transceiver making
retransmission; and
at least one gateway connected to the wide area network
configured to receive and translate the select information, the
identification information associated with the nearby wireless
transceiver, and transceiver identification information
associated with one or more retransmitting transceivers, said
gateway further configured to further transmit the translated
information to the computer over the WAN.

E. References relied upon
Petitioner relies on the following references.
Network 3000 Communications Users Guide,
BRISTOL BABCOCK INC, February 5, 1993
(“Network 3000 CUG”)

Ex. 1002
Enterprise Server Configuration Manual,
BRISTOL BABCOCK INC., June 1992 (“Enterprise
Server CM”)

Ex. 1003
Enterprise Operator Manual, BRISTOL BABCOCK
INC., June 1992 (“Enterprise OM”)

Ex. 1004
Open Bristol System Interface Utilities Manual,
BRISTOL BABCOCK INC., July 1998 (“Open BSI
UM”)

Ex. 1005
Bill Greeves, SCADA Uses Radio to Bridge the
Gap, SENSOR REVIEW, 14 (1994) (“Greeves”)

Ex. 1006
Manuel Günter, Virtual Private Networks over
the Internet, August 3, 1998 (Günter)
Ex. 1007
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KANTRONICS KPC-3 PLUS—Users Guide:
Introduction, Getting Started, Modes of
Operation, Command Reference, and Hardware
Specifications, 1997(“Kantronics”)
Ex. 1008

We instituted trial based on the following grounds.
References Basis Claim(s)
Challenged
Enterprise Server CM, Network 3000 CUG,
and Greeves
§ 103(a) 1, 2, 12, and 13
Enterprise Server CM, Network 3000 CUG,
Greeves, and Open BSI UM
§ 103(a) 3
Enterprise Server CM, Network 3000 CUG,
Greeves, and Günter
§ 103(a) 3
Enterprise Server CM, Network 3000 CUG,
Greeves, and Kantronics
§ 103(a) 4
Enterprise Server CM, Network 3000 CUG,
Enterprise OM, and Greeves
§ 103(a) 9–11

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, at 1277–79 (Fed. Cir. 2015); Office Patent Trial Practice
Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012).
Neither party proffers an explicit construction of any term appearing
in the claims of the ’661 patent, nor identifies any term that is expressly
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defined in the Specification. For purposes of this Decision, we determine
that no term requires explicit construction.

B. Enterprise Server CM and Network 3000 CUG
Enterprise Server CM describes a system in which “[r]eal time data
from a plant or process is collected by process instruments and measuring
devices, and sent to a network of Bristol Babcock remote process
controllers.” Ex. 1003, 1-1. Figure 3-1 of Enterprise Server CM is
reproduced below.

Figure 3-1 illustrates a hierarchical network structure used by the system in
which nodes are connected in a master/slave relationship. Id. at 3-1. Signal
information from the field arrives at each process controller either directly
from process instruments or from a slave process controller below it in the
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hierarchy, and is passed to a respective master process controller until the
data reach a top-level node. Id. at 3-1 – 3-2.
Network 3000 CUG is a user manual describing certain network
communications protocols, specifically “information pertaining to the
Bristol Standard Asynchronous Protocol [(“BSAP”)] and the Remote Data
Base Access message formats.” Ex. 1002, 3. Petitioner’s witness, Raymond
Gannon, testifies that Enterprise Server CM and Network 3000 CUG “were,
in fact, written to focus on different components and features of a Network
3000 network.” Ex. 1009 ¶ 52. Enterprise Server CM focuses on
configuring the Enterprise server for use in the Network 3000 network, and
Network 3000 CUG focuses on the communications protocols of the
Network 3000 network. Network 3000 CUG explains that the Network
3000 network provides an inverted tree-structure topology in which one or
more nodes in each level of a network has up to six levels of nodes.
Ex. 1002, 4. Two types of modems may be used to communicate over links
within the network: a dedicated line modem and a switched network modem
connected to the public telephone system. Id. at 44. Figure 1 of Network
3000 CUG is reproduced below.
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Figure 1 illustrates a simple network disclosed by Network 3000 CUG, and
the global (“G”) and local (“L”) relationships between its nodes.
Ex. 1002, 5.
Mr. Gannon attests that he “was employed by Bristol Babcock for 33
years, in the positions of Software Engineer for 25 years, Director of Product
Development for 3 years, and Vice President of Engineering for 5 years.”
Ex. 1009 ¶ 2. In his capacity as Software Engineer, Mr. Gannon “was
involved in the design, development, testing, and deployment of
firmware/software used in the various Network 3000 remote terminal units
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(RTUs)/remote process controllers (RPCs) and transmitters.” Id. Mr.
Gannon asserts that he has “personal knowledge and actual working
experience with the operation of the [BSAP], the Remote Data Base Access
(“RDB”) feature of the Network 3000, and the teachings of Network 3000
CUG, Enterprise Server CM, Enterprise OM, Open BSI UM, Greeves, and
Günter.” Id. In light of this personal knowledge, we credit Mr. Gannon’s
assertion that Enterprise Server CM and Network 3000 CUG were “written
to focus on different components and features of a Network 3000 network,”
and we conclude that one of skill in the art would reasonably combine their
teachings. Id. ¶ 52.

C. Greeves
Greeves describes a large-scale supervisory control and data
acquisition (“SCADA”) system that includes a central station connected to
multiple clusters of outstations, each of which includes a gateway.
Ex. 1006, 33. Land lines link the central control station to the gateway of
each cluster, and the gateway communicates with its outstations by radio.
Id. Telemetry information received by radio at gateway stations from
outstations can be viewed from the central station. Id. Petitioner reasons
that “[b]ecause each gateway communicates via land lines to the central
station and via radio with its respective outstations, each gateway wirelessly
receives and translates the telemetry information received from its
outstations.” Pet. 20.
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Petitioner notes several connections between Greeves and the
Network 3000 network described by Network 3000 CUG and Enterprise
Server CM: the Shearway station in Figure 1 of Greeves is a Network 3000
remote terminal unit (Pet. 21 (citing Ex. 1006, 33)); Greeves notes that
Bristol Babcock is “‘a market leader in the provision of radio telemetry
systems within the water industry and has its own in-house radio telemetry
expertise’” (Pet. 35 (citing Ex. 1006, 33)); and Greeves discusses an
exemplary telemetry system installed by Bristol Babcock for Folkestone and
Dover Water Services in the United Kingdom using radio communications
(Pet. 35 (citing Ex. 1006, 33)). In light of these identified relationships, we
conclude that one of skill in the art reasonably would combine the teachings
of Greeves with those of Network 3000 CUG and Enterprise Server CM.

D. Claims 1 and 9–13

Challenged independent claim 1 recites a plurality of transceivers,
“each transceiver electrically interfaced with a sensor and configured to
receive select information and identification information transmitted from
another nearby wireless transceiver electrically interfaced with a sensor in a
predetermined signal type and further configured to wirelessly retransmit in
the predetermined signal type the select information.” Ex. 1001, col. 18,
ll. 39–45. Challenged independent claim 9 recites “a wireless transmitter
coupled with the gateway for transmitting a wireless signal that contains the
control signal; a first wireless transceiver electrically interfaced with an
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actuator for receiving the wireless signal and further retransmitting the
wireless signal to the target remote device.” Id. at col. 19, ll. 51–56. Similar
to claim 1, challenged independent claim 12 recites a plurality of non-earth
orbiting transceivers, “each transceiver integrated with a sensor and
configured to receive select information and identification information
transmitted from another nearby wireless transceiver in a predetermined
signal type.” Id. at col. 20, ll. 31–35. We agree with Patent Owner that
these limitations in independent claims 1, 9, and 12 are fairly characterized
as “requir[ing] wireless transceivers receiving and transmitting information
wirelessly.” PO Resp. 21. We note that Petitioner acknowledges this
characterization by Patent Owner without challenging its accuracy. Reply 1;
see Tr. 14:15–16:9. Challenged claims 10 and 11 depend from challenged
independent claim 9, and challenged claim 13 depends from challenged
independent claim 12, and, thus, include the same requirement.
In addressing these limitations, Petitioner identifies the tree topology
disclosed by Network 3000 CUG as illustrated in Figure 1 reproduced
above: “All nodes except for the lowest-level nodes are local masters to the
nodes below and, therefore, receive RDB responses from their slaves, by
wired or wireless connections.” Pet. 28 (citing Ex. 1002, 5–6, 44); see id. at
47–49, 53. Petitioner also identifies disclosure by Enterprise Server CM
“that a node may receive data directly from a field instrument and also from
lower-level nodes.” Id. at 29 (citing Ex. 1003, 3-2); see id. at 47–48, 53. In
addressing claim 9, Petitioner additionally identifies disclosure in Greeves
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that “[t]he gateway station of each cluster communicates with its outstations
via radio,” but acknowledges that, in Greeves, “gateways communicate via
land lines with the central control station and via radio with respective
outstations.” Id. at 48–49. The Petition does not provide a specific
explanation how the teachings of Enterprise Server CM, Network 3000
CUG, and Greeves are proposed by Petitioner to be combined, leaving
details of the combination to inference.2 See PO Resp. 6 (“Petitioner
provided a description of each reference followed by a conclusory statement
that the reference taught certain claim limitations, leaving the Board to
figure out whether the primary or secondary reference best teaches the claim
limitation.”).
Citing the testimony of its own witness, Kevin C. Almeroth, Ph.D.,
Patent Owner responds that “‘a person of skill in the art would not be taught
[by Enterprise Server CM and Network 3000 CUG] that there were multiple
levels of devices using wireless communication.’” PO Resp. 23 (citing
Ex. 2001 ¶ 92). Patent Owner further responds that “Greeves does not
compensate for the deficiencies of Enterprise Server CM and Network 3000
CUG,” and asserts that “Greeves confirms that a multi-level network of
wireless transceivers receiving and transmitting information wirelessly
would not have been obvious to one of ordinary skill in the art.” Id. at 37
(citing Ex. 2001 ¶ 119).

2 The ground on which we instituted for claim 9 additionally involves
Enterprise OM. Petitioner does not rely on Enterprise OM for the feature of
wireless receipt and retransmission.
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Patent Owner supports these positions as follows. First, Patent Owner
observes that “Enterprise Server CM, a document with 482 pages, mentions
the word ‘radio’ only twice.” Id. at 24. One of these is part of a glossary:
“In the context of Network 3000, the network includes computers and
process controllers which are connected by some kind of communication
link (such as cable or radio) for the purpose of exchanging data.” Ex. 1003,
16-6. Notwithstanding the definitional character of the indication that
communication links within Enterprise Server CM may be by radio, i.e.,
wireless, Dr. Almeroth concludes from his review of the document that
Enterprise Server CM provides no examples describing the use
of radio/wireless communication on any link. Rather, the
examples provided in the reference describe the use of wired
links, for example, in the glossary definition of “Gateway[,]” a
figure describing wired links in the processor network and a
LAN between the gateway and Enterprise Server VAX
computer.

Ex. 2001 ¶ 97.
Second, although Dr. Almeroth acknowledges Network 3000 CUG’s
disclosure of a tree hierarchy as illustrated in Figure 1, reproduced above, he
testifies that he “can find nowhere in the Network 3000 CUG reference that
describes the use of radio links at multiple levels of the network” such that
transceivers both receive and transmit information wirelessly. Id. ¶ 103.
His conclusion is consistent with Network 3000 CUG’s statement that
“[o]nly single master protocols are supported on an Asynchronous network.”
Ex. 1002, 44 (emphasis added); see PO Resp. 27–29.
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Third, Dr. Almeroth provides reasons why a person of ordinary skill
in the art would not understand Network 3000 CUG and Enterprise Server
CM to teach or suggest transceivers both receiving and transmitting
information wirelessly in light of other disclosures in the references. For
example, Dr. Almeroth explains that the use of wireless transmissions in the
network described by Network 3000 CUG would change its tree topology to
a mesh topology. Ex. 2001 ¶¶ 108–109. According to Dr. Almeroth, the use
of wireless links at multiple levels of the network described by Network
3000 CUG “would require some kind of dynamic routing algorithm that is
able to account for a wide variety of dynamic link conditions” and which is
not described in any of Enterprise Server CM, Network 3000 CUG, or
Greeves. Id. ¶ 110. Dr. Almeroth further testifies that solutions to
interference that would problematically arise in such a network were not
developed until the mid-2000s, i.e. after the effective filing date of the
claims. Id. ¶ 113 (citing K. Ramachandran, E. Belding, K. Almeroth, and
M. Buddhikot, Interference-Aware Channel Assignment in Multi-Radio
Wireless Mesh Networks, IEEE INFOCOM, Barcelona, Spain (April 2006)).
With respect to Greeves, Dr. Almeroth testifies that the reference does
not teach “using radio links across multiple hops—not in the generic
description; not for the Dover Water Services project; and not for any of the
other projects mentioned. Rather, the entire reference is focused on the use
of radio technology only in a single hop, specifically the last hop.” Id. ¶ 123
(emphasis added). Patent Owner provides further support to Dr. Almeroth’s
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opinion by observing that Greeves discloses several different configurations
of wireless radios that all use wireless communication in only a single hop in
Figures 2, 3, 4, and 5. PO Resp. 38.
Our reviewing court has emphasized the need for an obviousness
analysis to remain focused on the context of what was known at the time of
the invention: “Obviousness is assessed at the time of the invention.”
Siemens Medical Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics,
Inc., 637 F.3d 1269 (Fed. Cir. 2011). This is an instance when a
contemporary perspective on the obviousness of modifications to the prior
art may differ from the perspective of one of skill in the art at the time of the
invention.
Dr. Almeroth’s testimony is largely unrebutted. In its Reply,
Petitioner argues that “Greeves teaches a working example of a radio
communications system” and that “[w]hen this disclosure is combined with
the uncontested disclosure of radio modems in Network 3000[3], it would be
obvious to a [person of ordinary skill in the art] that the combination
teaches” the relevant claim limitation. Reply 2. This argument was not

3 Petitioner frequently refers to “Network 3000” in its arguments as the
network described by Network 3000 CUG and Enterprise Server CM. We
note that the characteristics of the network as implemented and sometimes
described by Mr. Gannon in his testimony are irrelevant to an inter partes
review, which is limited to considering “prior art consisting of patents or
printed publications.” 35 U.S.C. § 311(b). That is, we are limited by statute
to considering only the disclosures of the references and not
implementations that may be solely within Mr. Gannon’s personal
knowledge.
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articulated clearly in the Petition, and it is, nevertheless, unpersuasive in
light of Dr. Almeroth’s testimony. Nor are we persuaded by Petitioner’s
general argument that various of the references disclose wireless
communications that a person of skill in the art would have found obvious to
implement in the tree hierarchy disclosed by Enterprise Server CM. See id.
at 2–4. That argument is insufficiently supported by evidence that responds
to the several issues raised by Dr. Almeroth. See In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974) (unsupported attorney argument in a brief cannot
take the place of evidence).
Petitioner filed a second Declaration by Mr. Gannon with its Reply,
indicating that Mr. Gannon had reviewed Dr. Almeroth’s Declaration
(Ex. 2001), the exhibits cited in Dr. Almeroth’s Declaration, and the
transcript of Dr. Almeroth’s deposition (Ex. 1011). Ex. 1012 ¶ 2. Mr.
Gannon’s second declaration (Ex. 1012) does not address Dr. Almeroth’s
opinion that using wireless communication at multiple levels of the tree
hierarchy disclosed by Enterprise Server CM would transform it into a mesh
network, nor that techniques for addressing resulting interference had not yet
been described to those of skill in the art at the time of the invention.
Rather, Mr. Gannon emphasizes that “[o]ne of ordinary skill in the art would
understand that [the] network would include nodes at multiple levels
because of the tree hierarchy” and that “wired links may not be preferable
where physical obstructions present difficulties in connecting the wire
between the nodes, and radio links might not be preferable across very large
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distances.” Id. ¶¶ 7, 6. Although we credit those opinions of Mr. Gannon,
we find more compelling the bases for Dr. Almeroth’s opinion that one of
skill in the art would be disinclined to use wireless communication at
multiple levels of Enterprise Server CM’s tree hierarchy.
Petitioner also contends that “Dr. Almeroth testified that in a[t] least
some limited circumstances, Network 3000 alone discloses wireless
communication between nodes at multiple levels.” Reply 3–4 (citing Ex.
1011, 133:16–135:14; 10:2–22). In portions of Dr. Almeroth’s deposition
testimony cited by Petitioner, he agrees that there may be circumstances
under which “wired communication is more suitable than wireless
communication.” Ex. 1011, 10:11–22. This is consistent with Mr.
Gannon’s testimony. In other portions of Dr. Almeroth’s deposition
testimony cited by Petitioner, he acknowledges that “[t]here might be
instances where you could set it up . . . through physical placement of the
nodes or transmit power such that you had no overlapping signal
transmission ranges.” Id. at 133: 22–134:6. But Dr. Almeroth emphasizes
with that testimony, “that would be a special case . . . and not indicative of
the way the system would work as a whole generally.” Id. at 134:7–14. In
the context of Dr. Almeroth’s testimony as a whole, and in the absence of
any identified disclosure in the references or evidence of the understanding
of a person of ordinary skill that such a special case is contemplated, we do
not find that such acknowledgments discredit his opinion that one of skill in
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the art would not use wireless communication at multiple levels of the tree
hierarchy disclosed by Enterprise Server CM at the time of the invention.
Accordingly, we credit Dr. Almeroth’s opinion and conclude that
Petitioner has not demonstrated, by a preponderance of the evidence, that
one of skill in the art would understand the combination of Network 3000
CUG, Enterprise Server CM, and Greeves to disclose or suggest a plurality
of transmitters receiving and retransmitting information wirelessly. That is,
we find that Petitioner has not demonstrated, by a preponderance of the
evidence, that it would have been obvious over the combination of Network
3000 CUG, Enterprise Server CM, and Greeves to have a plurality of
transceivers, “each transceiver electrically interfaced with a sensor and
configured to receive select information and identification information
transmitted from another nearby wireless transceiver electrically interfaced
with a sensor in a predetermined signal type and further configured to
wirelessly retransmit in the predetermined signal type the select
information,” as recited in independent claim 1 and as similarly recited in
independent claim 12. Nor has Petitioner demonstrated, by a preponderance
of the evidence, that it would have been obvious over the combination of
Network 3000 CUG, Enterprise Server CM, and Greeves to have a plurality
of non-earth orbiting transceivers, “each transceiver electrically integrated
with a sensor and configured to receive select information and identification
information transmitted from another nearby wireless transceiver [] in a
predetermined signal type,” as recited in independent claim 1.
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Accordingly, we conclude that Petitioner has not demonstrated, by a
preponderance of the evidence, that claim 1 is unpatentable under 35 U.S.C.
§ 103(a) over Enterprise Server CM, Network 3000 CUG, and Greeves; has
not demonstrated, by a preponderance of the evidence, that claims 9–11 are
unpatentable under 35 U.S.C. § 103(a) over Enterprise Server CM, Network
3000 CUG, Enterprise OM, and Greeves; and has not demonstrated, by a
preponderance of the evidence, that claims 12 and 13 are unpatentable under
35 U.S.C. § 103(a) over Enterprise Server CM, Network 3000 CUG, and
Greeves.

E. Claims 2–4
Unlike independent claims 1, 9, and 12, challenged independent
claim 2 does not require transceivers receiving and transmitting information
wirelessly. Claim 2 recites instead “adaptively configuring at least one
transmitter electrically interfaced with a sensor where the transmitter
generates an information signal consisting of a transmitter identification
code and an information field, wherein the information signal is received by
another nearby transmitter electrically interfaced with a sensor and repeated
in the same signal type as received to additional transmitters each
electrically interfaced with a sensor for communicating the information
signal to a gateway, the gateway providing access to a WAN [wide-area
network].” Ex. 1001, col. 18, l. 60 – col. 19, l. 2. Petitioner relies on its
analysis for claim 1 for this limitation, and addresses additional limitations
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that “the computer is configured to manipulate and store data provided in the
information signal” and “granting client access to the computer” as disclosed
by the combination of Network 3000 CUG and Enterprise Server CM.
Pet. 36–37. Patent Owner responds that “there is no disclosure of a gateway
connected to a WAN in Enterprise Server CM, Network 3000 CUG, or
Greeves.” PO Resp. 41. Patent Owner supports its position with testimony
by Dr. Almeroth. Id. at 41–44 (citing Ex. 2001 ¶¶ 125, 128, 129, 131, 132,
135).
As Petitioner observes, Network 3000 CUG teaches two types of
models that may be connected to the public telephone system, which Mr.
Gannon testifies is a “well-known wide area network.” Reply 11 (citing
Ex. 1002, 44; Ex. 1009 ¶ 8). In addition, Greeves teaches that each of its
multiple clusters of outstations includes a gateway that receives data from a
plurality of outstations. Ex. 1006, 33. We are persuaded that Petitioner has
demonstrated that the cited art discloses “additional transmitters each
electrically interfaced with a sensor for communicating the information
signal to a gateway, the gateway providing access to a WAN.” PO Resp. 40.
Patent Owner’s response that Network 3000 CUG lacks “‘further
description of what equipment is connected to the public telephone network,
how this connection takes place, and what information is communicated
over the network’” is not persuasive. PO Resp. 41–42 (citing Ex. 2001
¶ 128). Syntex LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005)
(“What a reference teaches a person of ordinary skill is not . . . limited to
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what a reference specifically ‘talks about’ or what is specifically
‘mentioned’ or ‘written’ in the reference.”); In re Burckel, 592 F.2d 1175,
1179 (CCPA 1979) (“Under 35 U.S.C. § 103, a reference must be
considered not only for what it expressly teaches, but also for what it fairly
suggests.”). We are also not persuaded by Patent Owner’s contention that
the deployment described in Greeves is “‘a local area network, or at best a
metropolitan area network, and not a wide area network.’” PO Resp. 44
(quoting Ex. 2001 ¶ 136). Patent Owner acknowledged at the oral hearing
that such distinctions relate only to the scale of the network. Tr. 44:15–45:4.
We find that a person of ordinary skill in the art would understand that the
teachings identified by Petitioner would apply to larger-scale networks,
particularly in light of Patent Owner’s implied recognition that the network
in Greeves may reasonably be considered larger than a local-area network.
See PO Resp. 44–45 (citing Ex. 2001 ¶ 136).
Accordingly, we conclude that Petitioner has demonstrated, by a
preponderance of the evidence, that claim 2 is unpatentable under 35 U.S.C.
§ 103(a) over Enterprise Server CM, Network 3000 CUG, and Greeves.
With respect to claim 3, which recites that “the WAN is the Internet,”
Petitioner identifies Open BSI UM’s disclosure of IP-compatible remote
terminal units and Günter’s disclosure of replacing leased lines and dial-up
remote access by Internet connections. Pet. 38. Patent Owner identifies a
warning in Open BSI UM against use of the public Internet in the Bristol
Babcock network because such use would raise security concerns. PO
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Resp. 46–51. But the identified security concerns do not address the
technical obviousness of using the public Internet to one of skill in the art.
We conclude that Petitioner has demonstrated, by a preponderance of the
evidence, that claim 3 is unpatentable under 35 U.S.C. § 103(a) over
Enterprise Server CM, Network 3000 CUG, Greeves, and Open BSI UM,
and that claim 3 is unpatentable under 35 U.S.C. § 103(a) over Enterprise
Server CM, Network 3000 CUG, Greeves, and Günter.
With respect to claim 4, which recites inclusion of a global
positioning system (“GPS”) receiver, Petitioner identifies Kantronics’s
description of a node that may include a GPS device. Pet. 39–40. Patent
Owner contends that “Kantronics mentioned GPS in the limited context of
‘adding the KPC-3 Plus and a computer to your ham radio station.’” PO
Resp. 58 (quoting Ex. 1008, 15 (emphasis by Patent Owner)). We do not
find this argument persuasive. “The test for obviousness is not whether the
features of a secondary reference may be bodily incorporated into the
structure of the primary reference.” In re Keller, 642 F.2d 413, 425 (CCPA
1981). We conclude that Petitioner has demonstrated, by a preponderance of
the evidence that claim 4 is unpatentable under 35 U.S.C. § 103(a) over
Enterprise Server CM, Network 3000 CUG, Greeves, and Kantronics.

III. ORDER
In consideration of the foregoing, it is hereby:
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Patent 7,468,661 B2

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ORDERED that, based on a preponderance of the evidence, claims 2–
4 of U.S. Patent No. 7,468,661 B2 are unpatentable;
FURTHER ORDERED that, based on a preponderance of the
evidence, claims 1 and 9–13 of U.S. Patent No. 7,468,661 B2 have not been
shown to be unpatentable; and
FURTHER ORDERED that, because this is a final written decision,
parties to this proceeding seeking judicial review of our decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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PETITIONER

Alfred Zaher
Shawn Li
Jonathan Bowser
BUCHANAN INGERSOLL & ROONEY PC
Alfred.Zaher@bipc.com
Shawn.Li@bipc.com
Jon.Bowser@bipc.com

Jay Guiliano
Ryan Murphy
NOVAK DRUCE CONNOLLY BOVE
+ QUIGG LLP
jay.guiliano@novakdruce.com
ryan.murphy@novakdruce.com

PATENT OWNER

Gregory Gonsalves
GONSALVES LAW FIRM
gonsalves@gonsalveslawfirm.com

James Schutz
TROUTMAN SANDERS LLP
james.schutz@troutmansanders.com