Wavetronix LLC v. Smart Microwave Sensors Gmbh ( 2018 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WAVETRONIX LLC,
Appellant
v.
SMART MICROWAVE SENSORS GMBH,
Appellee
______________________
2017-2328
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2016-
00488.
______________________
Decided: August 31, 2018
______________________
BRENT P. LORIMER, Workman Nydegger, Salt Lake
City, UT, argued for appellant. Also represented by
DAVID P. JOHNSON, DAVID R. TODD, THOMAS R. VUKSINICK.
ANDREW M. CALDERON, Roberts Mlotkowski Safran
Cole & Calderon, P.C., McLean, VA, argued for appellee.
Also represented by ANDREW D. WRIGHT.
______________________
Before LOURIE, O’MALLEY, and WALLACH, Circuit Judges.
2 WAVETRONIX LLC v. SMART MICROWAVE SENSORS GMBH
LOURIE, Circuit Judge.
Wavetronix LLC appeals from the final written deci-
sion of the United States Patent and Trademark Office
Patent Trial and Appeal Board (“the Board”) in an inter
partes review determining that claims 9, 10, 12, 13, 22,
23, and 25 of U.S. Patent 6,693,557 are unpatentable as
anticipated or obvious, or both. See generally Smart
Microwave Sensors GmbH v. Wavetronix LLC, No.
IPR2016-00488, 2017 WL 3034507 (P.T.A.B. July 17,
2017) (“Decision”). Because the Board did not err in its
decision, we affirm.
BACKGROUND
Wavetronix owns the ’557 patent directed to a traffic
sensor for detecting and monitoring vehicles on a road-
way. See ’557 patent Abstract. The specification explains
that the “science and engineering of traffic planning and
control has long relied on the use of sensor devices de-
signed” for use in “urban planning, public safety and
traffic control.” Id. col. 1 ll. 23–27. The present sensor
invention employs an improved “planar design,” which is
the “result of controlled manufacturing processes for
forming controlled interconnects and structures on repli-
cable circuit boards.” Id. col. 2 ll. 53–57. The circuit
board includes “transmit and receive antennas for radiat-
ing a signal toward a vehicular target and for receiving
the signal as reflected from the vehicular target.” Id. col.
2 ll. 62–65; see also id. fig. 1. The reflected signals may
then be filtered, amplified, and converted to digital sig-
nals, see id. col. 9 l. 3–col. 10 l. 6, for generating “the
desired traffic statistics for use in traffic analysis, control,
and forecasting,” id. col. 10 ll. 11–15.
Independent claim 9 is representative and reads as
follows:
WAVETRONIX, LLC v. SMART MICROWAVE SENSORS GMBH 3
9. An above-ground traffic sensor for detecting ve-
hicles traveling on a roadway, the traffic sensor
comprising:
a radio frequency circuit board including:
a transmit portion that includes:
a digitally generated modulated signal
generator that digitally generates a
signal that is transmitted by a trans-
mitter towards vehicles traveling on a
roadway; and
a receiver portion that detects a reflected
signal from the vehicles traveling on the
roadway and that generates a data signal
that represents traffic data from the re-
flected signal.
Id. col. 11 ll. 21–32 (emphases added).
Smart Microwave Sensors GmbH (“SMS”) filed a
petition for inter partes review of claims 9, 10, 12, 13, 22,
23, and 25 of the ’557 patent. Claim 22, the only other
independent claim challenged, is substantively the same
as claim 9 except that it does not require the sensor to
comprise a single “radio frequency circuit board.” Com-
pare id. col. 11 ll. 21–32 (claim 9), with id. col. 12 ll. 49–61
(claim 22). Claims 10, 12, 13, 23, and 25 are not separate-
ly argued on appeal. See Appellant’s Br. 49.
SMS asserted multiple grounds of unpatentability
and the Board instituted review on all the challenged
claims and grounds. SMS first alleged that U.S. Patent
5,506,584 (“Boles”) anticipated claim 22 and U.S. Patent
6,085,151 (“Farmer”) anticipated claims 22, 23, and 25.
Boles teaches a radar sensor that can measure a vehicle’s
range and speed. See Boles Abstract, col. 2 ll. 6–11.
Farmer discloses a radar sensor for use in collision avoid-
ance systems that estimates the time to impact of an
4 WAVETRONIX LLC v. SMART MICROWAVE SENSORS GMBH
object colliding with a host vehicle. See Farmer col. 4 ll.
12–14. Farmer also discloses the use of a “direct digital
synthesizer (DDS)” for generating signals. Id. col. 8 ll.
13–16.
SMS next asserted several obviousness grounds rely-
ing on Boles, Farmer, and U.S. Patent 5,008,678 (“Her-
man”) as the primary references. SMS asserted that (1)
claim 9 would have been obvious over Boles in view of
Herman or U.S. Patent 5,423,080 (“Perret”); (2) claims 9
and 12 would have been obvious over Farmer in view of
Herman; and (3) claims 9 and 22 would have been obvious
over Herman in view of Farmer. Both Herman and Perret
disclose the advantages of fabricating devices on a single
printed circuit board. Herman teaches a radar sensor
that generates a signal of “any desired type” for sensing
objects in proximity to a vehicle, including the vehicle’s
blind spot. See Herman Abstract, col. 3 ll. 34–39. Her-
man’s sensor is preferably fabricated on “a single printed
circuit board” to “facilitate the manufacture of the []
sensor . . . at low cost on a commercial production basis.”
Id. col. 4 ll. 21–29; see also id. col. 2 ll. 6–11. Perret
discloses a microwave circuit that is mounted to a single
printed circuit board. See Perret Abstract, col. 1 ll. 53–55.
It notes that one of the benefits of a single circuit board is
reducing the “substantial risks of microwave leakage.” Id.col. 1 ll. 45–46; see also id. col. 1 ll. 52–60.
SMS also asserted obviousness against claims 10, 12,
and 13 based on the above three combinations in further
view of additional references. 1 However, on appeal,
Wavetronix does not challenge the Board’s findings with
respect to the teachings of those additional references or
1 U.S. Patent 6,373,427 (“Hohne”); Ken Gentile &
Rick Cushing, Analog Devices, Inc., A Technical Tutorial
on Digital Signal Synthesis (1999) (“Analog Devices”);
U.S. Patent 6,061,035 (“Kinasewitz”).
WAVETRONIX, LLC v. SMART MICROWAVE SENSORS GMBH 5
their combinability with the three combinations listed
above.
In its final written decision, the Board concluded that
all of the challenged claims were unpatentable as antici-
pated or obvious, or both. See Decision, 2017 WL
3034507, at *25. The Board construed “traffic data,” a
term present in both challenged independent claims, to
mean “any data generated or produced from a signal
reflected off vehicles on a roadway.” Id. at *7. The Board
based its construction on the claim language in light of
the specification. See id. at *4–5. The Board declined to
adopt either parties’ construction because neither party
properly accounted “for the plain meaning . . . in the
context of surrounding claim language.” Id. at *4. Specif-
ically, the Board rejected Wavetronix’s arguments that
the construction must include data of “all or substantially
all of the vehicles” and that it be linked to a “particular
section of the roadway,” because it found that the specifi-
cation did not support such a construction. See id. at *4–
5. Additionally, the Board found the testimony of Dr.
Hawkins, Wavetronix’s expert, unpersuasive because he
admitted that there was no widely accepted industry
definition of “traffic data.” See id. at *5.
Based on its construction, the Board determined that
both Boles and Farmer taught “traffic data.” Specifically,
the Board found that Boles discloses detecting the exces-
sive speed of a single vehicle. See id. at *16. The Board
also found that Farmer taught a radar system that de-
tects “objects (including vehicles) on the roadway proxi-
mate” to a host vehicle. Id. at *19. Based in part on those
findings, the Board concluded that claim 22 was antici-
pated by Boles, and claims 22, 23, and 25 were anticipat-
ed by Farmer. See id. at *16, *19.
The Board also determined that the challenged claims
would have been obvious over the asserted combinations
of prior art references, relying on Boles, Farmer, and
6 WAVETRONIX LLC v. SMART MICROWAVE SENSORS GMBH
Herman as primary references. First, the Board conclud-
ed that claim 9 would have been obvious over Boles in
view of Herman or Perret. See id. at *18. The Board
found that both Herman and Perret expressly taught the
advantages of a single circuit board, which is a disclosure
that is missing from Boles and required by claim 9. See
id. at *17. According to the Board, a person of ordinary
skill in the art would have been motivated to combine
Boles with either Herman or Perret to obtain the “express
benefits of a single circuit board,” id., and avoid the
drawbacks such as the “risks of microwave leakage” as
discussed in Perret, see Perret col. 1 ll. 45–46.
Second, the Board concluded that claims 9 and 12
would have been obvious over Farmer in view of Herman.
Once again, the Board found that an ordinarily skilled
artisan would have been motivated to combine the refer-
ences to “achieve the well-known benefits of integrated
manufacturing and associated lower costs” of the single
circuit board disclosed in Herman, but missing in Farmer.
See Decision, 2017 WL 3034507, at *20. On appeal,
Wavetronix does not separately argue claim 12.
Third, the Board concluded that claims 9 and 22
would have been obvious over Herman in view of Farmer.
The Board found that Herman taught a transmitter that
generates a signal of “any desired type”; although it failed
to disclose its details, Farmer discloses the details of a
direct digital synthesizer (“DDS”), which is a type of
digital transmitter. See id.Based in part on those findings, the Board concluded
that the asserted prior art combinations using Boles,
Farmer, or Herman as the primary references rendered
claims 9, 10, 12, 13, and 22 obvious. See id. at *18–22. In
conjunction with its determination that claims 22, 23, and
25 were anticipated, the Board concluded that all the
challenged claims were unpatentable. See id. at *25.
WAVETRONIX, LLC v. SMART MICROWAVE SENSORS GMBH 7
Wavetronix timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A).
DISCUSSION
We review the Board’s legal determinations de novo,
In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), and the
Board’s factual findings underlying those determinations
for substantial evidence, In re Gartside, 203 F.3d 1305,
1316 (Fed. Cir. 2000). A finding is supported by substan-
tial evidence if a reasonable mind might accept the evi-
dence to support the finding. Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). We review the Board’s
claim constructions de novo “and its underlying factual
determinations involving extrinsic evidence for substan-
tial evidence.” Microsoft Corp. v. Proxyconn, Inc., 789
F.3d 1292, 1297 (Fed. Cir. 2015) (citing Teva Pharm.
USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841–42 (2015)).
“Anticipation is a question of fact reviewed for sub-
stantial evidence.” In re Rambus, Inc., 753 F.3d 1253,
1256 (Fed. Cir. 2014). Obviousness is a question of law
based on underlying factual findings, including “the scope
and content of the prior art, differences between the prior
art and the claims at issue, the level of ordinary skill in
the pertinent art, and any objective indicia of non-
obviousness.” Randall Mfg. v. Rea, 733 F.3d 1355, 1362
(Fed. Cir. 2013) (citing KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 406 (2007)). Whether a person of ordinary skill
in the art would have been motivated to combine the prior
art is a question of fact that we review for substantial
evidence. See In re NuVasive, Inc., 842 F.3d 1376, 1381–
82 (Fed. Cir. 2016).
I. Claim Construction
Wavetronix first argues that the Board erred in its
construction of “traffic data.” According to Wavetronix,
the Board’s construction, which incorporates the phrase
“any data,” is unreasonably broad because it reads out the
8 WAVETRONIX LLC v. SMART MICROWAVE SENSORS GMBH
word “traffic.” Additionally, Wavetronix contends that
the Board’s construction is not reasonable in light of the
specification. Specifically, Wavetronix argues that the
specification describes the field of invention as traffic
engineering, and the proper construction of “traffic data”
must therefore be relevant to traffic engineering. Accord-
ing to Wavetronix, the proper construction is “data about
the movement of all or substantially all of the vehicles on
a fixed section of the roadway, generated from signals
reflected off the vehicles.” 2 Appellant’s Br. 30 (emphases
added). Without these attributes, Wavetronix argues that
the data would be “useless for purposes of traffic analysis
and traffic control.” Appellant’s Br. 32.
SMS responds that the Board’s construction of “traffic
data” was proper under the broadest reasonable interpre-
tation standard. According to SMS, the specification did
not set forth a clear definition of “traffic data,” and the
Board’s construction was the broadest reasonable inter-
pretation that was consistent with the specification.
Specifically, SMS points to the Summary of the Invention
cited by the Board, which broadly describes a “vehicle
sensor for detecting and monitoring vehicular targets.”
Appellee’s Br. 13 (quoting ’557 patent col. 2 ll. 51–57).
Moreover, the term “traffic data,” SMS contends, is not
limited in the specification, and it would not be appropri-
ate to add limitations regarding “how many vehicles are
included in traffic data; how the traffic data [are] derived
2 We note that Wavetronix argues a different claim
construction on appeal from what it argued before the
Board, changing, for example, the word “particular” to
“fixed.” Compare Appellant’s Br. 30, with J.A. 1384.
However, because we ultimately do not agree with either
one of Wavetronix’s proposed claim constructions, the
differences in its proposed claim constructions do not
impact the outcome.
WAVETRONIX, LLC v. SMART MICROWAVE SENSORS GMBH 9
from the reflected signal; where the traffic data [are]
obtained; and any degree of quality and/or usefulness of
the traffic data.” Id. at 14. SMS also highlights the
testimony of Dr. Hawkins, Wavetronix’s expert, who
conceded that a standard definition of “traffic data” does
not exist.
We agree with SMS that the Board’s construction of
“traffic data” as “any data generated or produced from a
signal reflected off vehicles on a roadway” was not unrea-
sonable. See Decision, 2017 WL 3034507, at *4; see also
J.A. 1048–49. In an inter partes review, claims are given
their “broadest reasonable interpretation in light of the
specification of the patent in which it appears.” 37 C.F.R.
§ 42.100(b); see also Cuozzo Speed Techs., LLC v. Lee, 136
S. Ct. 2131, 2142–46 (2016). “[B]ecause patentees fre-
quently use terms idiosyncratically, the court looks to”
sources including “the words of the claims themselves, the
remainder of the specification, the prosecution history,
and extrinsic evidence concerning relevant scientific
principles, the meaning of technical terms, and the state
of the art.” Phillips v. AWH Corp., 415 F.3d 1303, 1314
(Fed. Cir. 2005) (en banc) (internal citations omitted).
From this list of sources, “the claims themselves provide
substantial guidance as to the meaning of particular
claim terms.” Id. (internal citations omitted). Additional-
ly, the claims, which are part of “a fully integrated writ-
ten instrument . . . consisting principally of a specification
that concludes with the claims,” must also “be read in
view of the specification.” Id. at 1315 (internal quotation
marks and citations omitted). Accordingly, the specifica-
tion “is always highly relevant to the claim construction
analysis. Usually, it is dispositive; it is the single best
guide to the meaning of a disputed term.” Id. (quoting
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582
(Fed. Cir. 1996)).
Beginning with the claim language, claim 9 recites “a
receiver portion that detects a reflected signal from the
10 WAVETRONIX LLC v. SMART MICROWAVE SENSORS GMBH
vehicles traveling on the roadway,” which “represents
traffic data.” ’557 patent col. 11 ll. 29–32 (emphases
added). Claim 22 similarly recites “a receiver portion . . .
receiving reflections of the modulated signal from vehicles
on the roadway,” which “are processed to produce traffic
data.” Id. col. 12 ll. 56–61 (emphases added). Both claims
expressly define “traffic data” in terms of the reflected
signals from the “vehicles traveling on the roadway.” See
id. col. 11 ll. 29–32, col. 12 ll. 56–61. The claims do not
recite any specifics regarding how many vehicles must be
included nor do they limit the roadway to any fixed sec-
tion.
The written description further supports this con-
struction. The written description broadly describes the
invention as a “vehicle sensor for detecting and monitor-
ing vehicular targets,” id. col. 2 ll. 52–53, and neither
expressly defines “traffic data” nor provides any disclo-
sure that requires the construction to include “all or
substantially all of the vehicles” or be tied to a “fixed
section of the roadway.” Traffic can include many vehi-
cles or fewer vehicles, or, in the latter case, only one
vehicle. In fact, Wavetronix conceded during the oral
hearing before the Board that data on one vehicle could
still be considered “traffic data.” See Decision, 2017 WL
3034507, at *5–6 (citing J.A. 3401, 3405–06).
Wavetronix’s argument that the claim construction
must include “all or substantially all of the vehicles” or be
tied to a “fixed section of the roadway” so that it is useful
to traffic engineers is unconvincing. While the specifica-
tion does mention the use of sensors in the “science and
engineering of traffic planning and control,” ’557 patent
col. 1 l. 24 (emphasis added), that is the only time “engi-
neering” is mentioned in the entire specification. We have
held that a claim construction that does not account for
repeated and consistent descriptions of an invention may
be unreasonably broad. See In re Smith Int’l, Inc., 871
F.3d 1375, 1382–83 (Fed. Cir. 2017). However, this is not
WAVETRONIX, LLC v. SMART MICROWAVE SENSORS GMBH 11
such a case. Here, the specification describes the inven-
tion within the context of traffic engineering only once.
That is not the repeated consistency required to endow
the claims with traffic engineering meaning. Cf. In re
Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir.
2004) (“We have cautioned against reading limitations
into a claim from the preferred embodiment described in
the specification, even if it is the only embodiment de-
scribed, absent clear disclaimer in the specification.”
(internal citations omitted)). The Board thus properly
declined to limit the claims to the field of traffic engineer-
ing.
The Board additionally considered extrinsic evi-
dence—the testimony of Dr. Hawkins, Wavetronix’s
expert. Generally, we have viewed extrinsic evidence as
“less reliable” than intrinsic evidence. See Phillips, 415
F.3d at 1318. Dr. Hawkins testified that the definition of
“traffic data” must relate to the movement of vehicles on a
particular section of the roadway and must include all or
substantially all of the vehicles to incorporate the essen-
tial attributes of traffic data in the context of traffic
engineering. See Decision, 2017 WL 3034507, at *5 (citing
J.A. 1848–54). However, Dr. Hawkins also admitted
during his deposition that his definition was likely not the
only possible definition and that there could be “multiple
definitions” of the term. Id. (quoting J.A. 2967). As a
result, the Board determined that there was no widely
accepted industry definition of “traffic data” and that it is
unclear whether a person of ordinary skill in the art
would have even agreed with Dr. Hawkins’s definition.
See id. The Board thus found this testimonial evidence
insufficient to support Wavetronix’s proposed construc-
tion. See id. at *5–6. As we give deference to “the Board’s
findings concerning the credibility of expert witnesses,”
Yorkey v. Diab, 601 F.3d 1279, 1284 (Fed. Cir. 2010)
(internal citations omitted), we see no error in the Board’s
decision not to rely on Dr. Hawkins’s inconclusive testi-
12 WAVETRONIX LLC v. SMART MICROWAVE SENSORS GMBH
mony in construing “traffic data,” see Phillips, 415 F.3d at
1318 (stating that “conclusory, unsupported assertions by
experts as to the definition of a claim term are not useful
to a court”).
Based on the foregoing, we conclude that the Board’s
construction of “traffic data” was not unreasonable.
II. Unpatentability
On appeal, Wavetronix’s only arguments regarding
the teachings of the prior art references are that they do
not disclose “traffic data.” However, because all of those
arguments are predicated on its proposed construction of
“traffic data,” and we have concluded that the Board’s
construction was not unreasonable, Wavetronix’s argu-
ments regarding the teachings of the prior art references
are moot. We therefore decline to reach those arguments
and affirm the Board’s findings that claim 22 was antici-
pated by Boles and claims 22, 23, and 25 were anticipated
by Farmer.
Additionally, it follows that Wavetronix’s arguments
regarding the prior art references’ lack of disclosure of
“traffic data” cannot form the basis for rejecting the
obviousness challenges. Therefore, Wavetronix’s only
remaining arguments are that the Board’s findings re-
garding a motivation to combine the prior art references
were not supported by substantial evidence. We address
those arguments next.
Wavetronix first argues that substantial evidence
does not support the Board’s finding that a skilled artisan
would have been motivated to combine Boles with either
Herman or Perret, because the Board failed to provide
details as to how the “strong leakage levels” from Boles’s
sensor could be accommodated by the single circuit board
in Herman or Perret. SMS responds that the motivation
existed because both references teach the express benefits
of mounting a sensor device on a single circuit board.
WAVETRONIX, LLC v. SMART MICROWAVE SENSORS GMBH 13
SMS also argues that the “strong leakage problem” identi-
fied in Boles is addressed by Perret, because Perret dis-
closes that one of the benefits of the single circuit board
design is reducing the risk of leakage. See Perret col. 1 ll.
42–46, 52–60.
We agree with SMS that the Board did not err in con-
cluding that a skilled artisan would have been motivated
to combine Boles with either Herman or Perret. Both
Herman and Perret expressly teach the benefits of a
sensor device mounted on a single circuit board. See
Herman col. 4 ll. 21–29; Perret Abstract; see also Herman
col. 2 ll. 6–11. As the Board found, the express benefits of
a single circuit board would have suggested to a skilled
artisan that the same benefit could be achieved in combi-
nation with Boles. See Decision, 2017 WL 3034507, at
*17. Additionally, the leakage problem identified in Boles
is also expressly addressed in Perret, which discloses that
a benefit of the single circuit board design is to reduce the
risk of leakage. See Perret col. 1 ll. 42–46, 52–60. The
above findings constitute substantial evidence. We there-
fore conclude that the Board’s finding of a motivation to
combine Boles with either Herman or Perret was support-
ed by substantial evidence.
Wavetronix rehashes some of those same arguments
in contending that the Board failed to explain why a
skilled artisan would have been motivated to mount
Farmer’s sensor on a single circuit board as taught in
Herman. SMS again responds, and we agree, that the
Board found that the motivation is provided in Herman’s
express disclosure regarding the benefits of mounting a
sensor on a single circuit board to “facilitate manufacture”
of the sensor “at low cost on a commercial production
basis.” Herman col. 4 ll. 21–29; see also Decision, 2017
WL 3034507, at *20. We thus determine that the Board’s
finding was supported by substantial evidence.
14 WAVETRONIX LLC v. SMART MICROWAVE SENSORS GMBH
Wavetronix finally contends that the more sophisti-
cated digital signal generator in Farmer is not required
for the sensor in Herman to function for its intended
purpose, and thus the Board’s finding that a person of
ordinary skill in the art would have been motivated to
combine Herman with Farmer is flawed. SMS responds,
and we agree, that the Board properly found that a skilled
artisan would have been motivated to combine Herman
with Farmer. See Decision, 2017 WL 3034507, at *20.
Herman discusses a sensor that can generate a signal of
“any desired type,” see Herman col. 3 ll. 34–39, and
Farmer discloses the details of a sensor with a digital
signal generator, a DDS, as required by the claims, see
Farmer col. 8 ll. 13–16. Those express disclosures consti-
tute substantial evidence to support the Board’s finding of
a motivation to combine.
We therefore determine that the Board’s motivation to
combine findings were supported by substantial evidence.
Accordingly, we conclude that the Board did not err in
determining that claims 9, 10, 12, 13, and 22 would have
been obvious over the combinations of prior art relying on
Boles, Farmer, and Herman as primary references. As we
have affirmed the Board’s findings that claims 22, 23, and
25 were anticipated, we conclude that the Board properly
determined that all challenged claims are unpatentable.
We have considered Wavetronix’s remaining argu-
ments, but find them unpersuasive. 3
3 Because we have determined that all of the chal-
lenged claims are unpatentable, we decline to reach
SMS’s superfluous arguments regarding whether the
Board erred in finding that three other references were
not prior art printed publications.
WAVETRONIX, LLC v. SMART MICROWAVE SENSORS GMBH 15
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Board.
AFFIRMED