Fed Circuit Watch: Motion-Tracking Patent Beats Obviousness Finding

103 fed circuit watch motivation to combine obviousness patent

This is the second of a trio of recent Federal Circuit precedential cases that have dealt with the law of obviousness that we will review for this blog.  Here, in Elbit Systems of America, LLC v. Thales Visionix, Inc.,[1] the Court of Appeals for the Federal Circuit held that claims directed to a motion-tracking patent were nonobvious, and affirmed the PTAB decision finding that Elbit failed to demonstrate Thales’ claims were obvious over a combination of prior art references.

The facts are as follows.

Thales’ Patent No. 6,474,159 (‘159) is directed to “tracking motion relative to a moving platform, such as motion-base simulators, virtual environment trainers deployed on board ships, and live vehicular applications including helmet-mounted cueing systems and enhanced vision or situational awareness displays.”[2]  The improvement over the field relates to elimination of calculating position relative to the ground, thereby improving functionality of moving vehicular functionality where GPS is not available.[3]  Claims 1-3 were deemed representative:

  1. A system for tracking the motion of an object relative to a moving reference frame, comprising:

a first inertial sensor mounted on the tracked object;

a second inertial sensor mounted on the moving reference frame; and

an element adapted to receive signals from said first and second inertial sensors and configured to determine an orientation of the object relative to the moving reference frame based on the signals received from the first and second inertial sensors.

2. The system of claim 1, in which the first and second inertial sensors each comprises three angular inertial sensors selected from the set of angular accelerometers, angular rate sensors, and angular position gyroscopes.

  1. The system of claim 2, in which the angular inertial sensors comprise angular rate sensors, and the orientation of the object relative to the moving reference frame is determined by integrating a relative angular rate signal determined from the angular rate signals measured by the first and second inertial sensors.

(Emphasis added.)

A claim is invalid if the differences between the patented matter and the prior art are such that the patented matter as a whole would have been obvious at the time of the invention to a POSITA.[4]  The law of obviousness is a question of law based on underlying facts.  Facts relevant to the findings include: 1) scope and content of the prior art, 2) differences between the prior art and claims at issue, 3) level of ordinary skill in the pertinent art, and 4) presence of objective indicia of nonobviousness such as a) commercial success, b) long felt but unsolved needs, c) failure by others, and d) unexpected results.[5]  In assessing the prior art, it is necessary to determine if a POSITA would have been motivated to combine the prior art to achieve the claimed invention.[6]

The panel, composed of Judges Moore, Wallach, and Stoll, held that substantial evidence supported the PTAB’s finding of nonobviousness.  The method for calculating the relative angular rate signal was undisputed.  Also, Elbit did not introduce extrinsic evidence to the contrary.  Third, the main prior art, the McFarlane reference, calculates directional angles twice – first, orientation twice then finding a median to resolve the orientational differences.  By contrast, the Thales’ claims used a two-step process, using the raw data from the inertial sensors, then using that data to calculate the angular rate signal, of which the data is then used to calculate the relative orientation.  This was supported in the ‘159 specification which specifies that “this system operates independently without any inputs from the motion-base controller or the vehicle attitude reference system . . . . “[7]

Elbit tertiarily argued the PTAB applied the incorrect obviousness standard because it “failed to credit the knowledge of the POSITA . . . because a POSITA would understand the sum of integrals principle,” and that PTAB required Elbit to produce prior art that expressly teaches the sum of integrals principle[8] as applied to navigational equations.[9]  However, the Fed Circuit panel threw this out, stating that:

Elbit improperly attempts to create legal error by selectively quoting from a portion of one of the PTAB’s multiple findings analyzing why it found Elbit’s expert unpersuasive, and “we will not find legal error based upon an isolated statement stripped from its context.”[10]

In essence, the panel determined that Elbit failed to present supporting evidence beyond mere attorney arguments, and “attorney arguments is not evidence” and cannot rebut other admitted evidence.[11]

[1] 881 F.3d 1354 (Fed. Cir. 2018), aff’g Elbit Sys. of Am., LLC v. Thales Visionix, Inc., Case No. IPR2015-01095 (P.T.A.B. Oct. 14, 2016).

[2]Id. (slip op. at 2); see ‘159 patent at 9:15.

[3]Id.

[4]See35 U.S.C. §103(a).

[5]See Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 17 (1966); see also MPEP 2143.

[6]SeeBall Aerosol v. Ltd. Brands, 555 F.3d 984, 993 (Fed. Cir. 2009).

[7]Elbit, supra (slip op. at 6-7).

[8] The sum of integrals principle is a “matter of calculus, the sum of integrals is equal to the integral of sums.”  Thus, Elbit had argued that this principle requires the same result is reached whether data is first integrated, then subtracted or first subtracted, then integrated, and that the order is irrelevant.  The extension of this argument, as Elbit argued, is that the ‘159 patent was only a predictable outcome of the prior art and therefore unpatentable.  Id.

[9]Id. (slip op. at 9).

[10]Id. (slip op. at 9-10); citing Waymo LLC v. Uber Techs., Inc., 870 F.3d 1350, 1361 (Fed. Cir. 2017).

[11]See Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017); see alsoMPEP 2145 and MPEP 716.01(c).