[00:00:39] Speaker 03:
The next target case is number 15, 1948, Bosch Automative Service Submissions against Hotel Incorporated.

[00:00:50] Speaker 03:
Mr. McCarthy.

[00:00:52] Speaker 00:
May I please the court?

[00:00:54] Speaker 00:
There are two points I'd like to try to meet this morning.

[00:00:58] Speaker 00:
The first thing is that the invention of the 796 patent is a universal tool.

[00:01:04] Speaker 00:
And the inventors here, they recognized the need for a universal tool.

[00:01:09] Speaker 00:
And they defined the problem by doing that.

[00:01:13] Speaker 00:
And that was part of the invention was that they figured out the need that didn't exist before that.

[00:01:21] Speaker 00:
Prior art, however, was describing universal sensors and not universal tools to activate the sensors.

[00:01:29] Speaker 00:
So the McClellan reference, for example, which clearly described a continuous wave method of activation,

[00:01:38] Speaker 00:
There's no recognition anywhere in McClelland of a need for a tool to activate different kinds of sensors or different methods of activation.

[00:01:47] Speaker 00:
McClelland's theory, if you follow probably his business plan, was that everyone has the same kind of sensors, and then they use his tool to activate them.

[00:01:58] Speaker 00:
And the same thing with Kranz, which clearly used a modulated wave method of activation.

[00:02:05] Speaker 00:
Kranz did not recognize any need for a universal tool either.

[00:02:09] Speaker 00:
In fact, Kranz specifically suggested that all vehicles in a fleet use the same type of sensor.

[00:02:17] Speaker 00:
And that brings us to Dixit, which of course was a big item of contention between the parties.

[00:02:24] Speaker 00:
Dixit did not describe a universal tool.

[00:02:28] Speaker 00:
He does use the term universal tool, but he doesn't describe the universal tool.

[00:02:33] Speaker 00:
Dixit required universal sensors.

[00:02:37] Speaker 00:
Now, I understand that a patent is enabling for, or is presumed to be enabling, and Dixit certainly is enabling for what he described, which was a method of programming bits into sensors.

[00:02:50] Speaker 00:
But where the board relied on Dixit to show that it's a generic tool, it's only a generic tool if everyone uses Dixit sensors.

[00:03:00] Speaker 00:
And that is not really a generic tool.

[00:03:02] Speaker 00:
Dixit sensors would have to have a writable memory.

[00:03:06] Speaker 00:
They'd have to have a controller so that they could write to that memory.

[00:03:10] Speaker 01:
I guess the understanding from Dixit was just the quoted sentences that showed that from Dixit there was an appreciation in the art for coming up with a universal tool that could work in a lot of different contexts, which to me sounds a lot like

[00:03:29] Speaker 01:
when I'm at home and I have a remote control for the TV, and I have remote control for the DVD, and I have remote control for the Xbox, and I think, gosh, it'd be pretty nice to have just one remote control that could talk to all these different devices.

[00:03:45] Speaker 01:
And that's kind of what your invention is, right?

[00:03:49] Speaker 01:
The ability to talk to different, you know... That's an absolutely fair analogy.

[00:03:54] Speaker 00:
...monitoring systems.

[00:03:55] Speaker 00:
Absolutely.

[00:03:57] Speaker 00:
Dixit, what Dixit recognized was if your DVD and your VCR and your TV all use the same kind of sensor, then you only need one tool.

[00:04:06] Speaker 00:
But that's not the way that the tire sensor business works, because it's just like your electronics.

[00:04:12] Speaker 00:
Your DVD player has a different method than the TV or the VCR or your Xbox or whatever kind of devices you have.

[00:04:23] Speaker 00:
By analogy, the 796 patent is you have one tool and it will use one method for your television and it will use a different method to control your DVD player and a different method to control your VCR.

[00:04:35] Speaker 00:
Dixit would only have one tool if all of those used the same method of control or method of activation.

[00:04:43] Speaker 00:
And that's why Dixit, I agree, he uses the term universal tool

[00:04:47] Speaker 00:
But he's not describing a universal tool.

[00:04:50] Speaker 00:
He's describing a tool with a universal sensor.

[00:04:55] Speaker 00:
Because that's all he described was one way of writing bits to a sensor, to our TMS sensor.

[00:05:04] Speaker 00:
So that is not a universal tool.

[00:05:06] Speaker 00:
That's a universal sensor.

[00:05:09] Speaker 00:
The device that, excuse me, the reference that did recognize being somewhat of a universal tool was Howell.

[00:05:17] Speaker 00:
which would use different methods of activation, but Howell was not for our TMS systems and didn't teach anything about activation of sensors on tires.

[00:05:30] Speaker 00:
So the combination does not teach the claims which were for this universal tool of at least two methods of activation.

[00:05:41] Speaker 00:
Now I was criticized for

[00:05:43] Speaker 00:
arguing the references individually, and I've done that this morning, I recognize.

[00:05:48] Speaker 00:
But it's because when you have a series of references or a number of references that are relied upon to create a combination that supposedly makes the claims obvious, if one of those does not do what it's relied upon for, then the combination fails.

[00:06:08] Speaker 00:
So if you have a three-legged stool and you knock out one leg,

[00:06:14] Speaker 00:
your stool's not going to stand up anymore.

[00:06:16] Speaker 00:
And so the Dixit case in particular, excuse me, the Dixit reference, is not a universal tool.

[00:06:23] Speaker 00:
Despite using that term, it does not describe a universal tool.

[00:06:27] Speaker 00:
And so the combination that was relied upon by the board does not teach the claims or suggest the claims.

[00:06:34] Speaker 01:
Can we talk about Howell?

[00:06:36] Speaker 01:
Howell seems to be the bridge, or if Dixit doesn't

[00:06:44] Speaker 01:
provide the bridge, then at least Howell appears to provide the bridge, at least under a substantial evidence standard, for an appreciation that when there's a lot of different communication systems with different end products, then Howell tells us

[00:07:02] Speaker 01:
Well, let's create a universal tool, a handheld unit, that is able to remotely talk with each of those end products in accordance with the particular system that each product contains.

[00:07:17] Speaker 01:
And so therefore that known insight for remotely communicating between a whole host of different devices

[00:07:28] Speaker 01:
was applied or would be obvious to apply to this other situation, which is what you have claimed here with talking to different tire pressure monitoring systems?

[00:07:41] Speaker 00:
It's obvious to apply that if there's some reason to do that, such as market pressure, which was recognized in the KSR case, which was not present in this case.

[00:07:52] Speaker 00:
Looking back now, almost every car now has these kind of pressure systems.

[00:07:57] Speaker 00:
At the time of the invention, though, they weren't required by law.

[00:08:01] Speaker 00:
They're required now.

[00:08:03] Speaker 00:
So there wasn't market pressure for these kind of tools.

[00:08:06] Speaker 00:
So yes, I agree under the substantial evidence standard that Howell does show a universal tool for RFID tags, but not for tire pressure monitoring systems.

[00:08:21] Speaker 00:
And so it's our contention that by using the roadmap of the 796 patent,

[00:08:27] Speaker 00:
You can look back and say, well, yeah, that was obvious to combine all these prior art references.

[00:08:34] Speaker 00:
But that's only if you know today what we know now.

[00:08:39] Speaker 00:
And at the time of the invention, that was not at all obvious.

[00:08:43] Speaker 00:
And therefore, I actually define that these claims are not obvious over the combination cited by the board.

[00:08:52] Speaker 00:
The second thing I wanted to discuss was the McClellan case in a little bit more detail, because McClellan is relied upon both for anticipation and for obviousness.

[00:09:03] Speaker 00:
And McClellan only described a tool with one means for activation.

[00:09:08] Speaker 00:
And he did say, well, other frequencies or ranges of frequencies may be used.

[00:09:16] Speaker 00:
But it's significant that he didn't say additional frequencies may be used.

[00:09:20] Speaker 00:
He said other ranges.

[00:09:23] Speaker 00:
He said different frequencies and maybe substituted.

[00:09:28] Speaker 00:
And substituted to me means that you use it in place of something else.

[00:09:33] Speaker 00:
So McClellan doesn't suggest using one range, one frequency, and then use another frequency.

[00:09:39] Speaker 00:
He says he only describes one frequency.

[00:09:43] Speaker 00:
And you can't use his disclosure or his description of his tool as a roadmap to find a

[00:09:51] Speaker 00:
device that activates at two different frequencies.

[00:09:54] Speaker 00:
Now he does say ranges of frequencies, which my expert says is a vague term.

[00:10:02] Speaker 00:
And it is because we don't know what it means.

[00:10:04] Speaker 00:
Because is a range just the Gaussian curve around 125 megahertz?

[00:10:12] Speaker 00:
Or is it everything from 125 up to something else?

[00:10:17] Speaker 00:
In any event, it's still a different range of frequencies.

[00:10:21] Speaker 00:
It doesn't lead anyone to think, well, hey, I could use this tool to activate at two different frequencies.

[00:10:28] Speaker 00:
He only describes one frequency.

[00:10:30] Speaker 00:
And therefore, he doesn't anticipate, and he doesn't render obvious either.

[00:10:36] Speaker 00:
Because the board noted that a person of skill in the art understanding the problems presented by incompatible sensors.

[00:10:43] Speaker 00:
But there was not a recognition of a problem of incompatible sensors for our TMS systems.

[00:10:51] Speaker 00:
until the inventors of the 796 patent recognized the problem.

[00:10:56] Speaker 00:
They recognized it.

[00:10:57] Speaker 00:
Nobody else did.

[00:10:58] Speaker 00:
And therefore, the claims are not anticipated.

[00:11:02] Speaker 00:
And they're not obvious over the art, as I've discussed.

[00:11:08] Speaker 00:
Thank you.

[00:11:09] Speaker 03:
Thank you, Mr. McCarthy.

[00:11:14] Speaker 02:
Ms.

[00:11:15] Speaker 02:
Lynch, may it please the court?

[00:11:19] Speaker 02:
Tools that can activate tire sensors were known in the art.

[00:11:23] Speaker 02:
And Bosch has claimed a tool that can simply use tire sensors using two or more of these known methods.

[00:11:29] Speaker 02:
Bosch argues that his claimed tool isn't obvious because there wasn't any design need or market pressure.

[00:11:34] Speaker 02:
But the prior art discloses both the design need and market pressure.

[00:11:38] Speaker 02:
Prior Art Howell talks about the incompatibility between what was currently on the market and says that that's hindering the widespread adoption of the technology.

[00:11:47] Speaker 03:
Doesn't that support their position?

[00:11:49] Speaker 03:
The need was long recognized and unsatisfied.

[00:11:54] Speaker 03:
The long-felt need is a significant factor, is it not?

[00:11:59] Speaker 02:
It can be a significant factor.

[00:12:01] Speaker 02:
Bosch doesn't argue that there was a long-felt need in this case.

[00:12:04] Speaker 02:
They don't make any of that showing whatsoever.

[00:12:07] Speaker 02:
So the prior art basically... They don't have to.

[00:12:09] Speaker 03:
The prior art says so.

[00:12:10] Speaker 03:
So this is a long-felt need for some kind of universal device.

[00:12:16] Speaker 02:
The prior art didn't say there was a long-felt need.

[00:12:18] Speaker 03:
They just said at that... You've cited that prior art as the basis for all business.

[00:12:25] Speaker 02:
Correct.

[00:12:25] Speaker 02:
And so the prior art howl says at that time there was an incompatibility between the current things on the market.

[00:12:32] Speaker 02:
That's all it says.

[00:12:33] Speaker 02:
It didn't say that there was a long-felt need.

[00:12:36] Speaker 02:
It didn't say that people had tried and failed to fix this.

[00:12:39] Speaker 02:
Nothing.

[00:12:40] Speaker 02:
It just said that things were incompatible and that was known in the art.

[00:12:44] Speaker 02:
And so the board correctly found that based on this known incompatibility, a person of ordinary skill in the art would have been motivated to make a tool that used more than one method in order to decrease the number of tools that they had to use.

[00:12:58] Speaker 00:
As to McClelland... Is there any suggestion that combining these various tools was technologically difficult or complex?

[00:13:07] Speaker 02:
No.

[00:13:09] Speaker 02:
Bosch made no such arguments that that would be beyond the skill of a person of ordinary skill in the art.

[00:13:14] Speaker 02:
And then McColland, it does suggest more than one frequency when it says ranges of frequency.

[00:13:19] Speaker 02:
And the board explains that at page 835 of its decision.

[00:13:24] Speaker 02:
If the court has no further questions, I will yield my time.

[00:13:32] Speaker 03:
Thank you.

[00:13:34] Speaker 03:
Mr. McCarthy, your last word.

[00:13:38] Speaker 00:
I don't really have anything to add other than what I've already said.

[00:13:41] Speaker 03:
Okay.

[00:13:43] Speaker 03:
Thank you.

[00:13:43] Speaker 03:
Thank you both.

[00:13:44] Speaker 03:
The case is taken into submission.