IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD. U.S. Patent No. 6,837,551 Attorney Docket No.

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1 Filed on behalf of Cequent Performance Products, Inc. By: Monte L. Falcoff Timothy D. MacIntyre Harness, Dickey & Pierce, PLC P.O. Box 828 Bloomfield Hills, Michigan Telephone: (248) Facsimile: (248) IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD In the Inter Partes Review of: Trial Number: To Be Assigned U.S. Patent No. 6,837,551 Attorney Docket No.: Issued: January 4, 2005 Inventor(s): Bruce Robinson et al. Petitioner: Cequent Performance Products, Inc. Panel: To Be Assigned Assignee: AP Products, Inc. Title: Towed Vehicle Brake Controller PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 6,837,551 PURSUANT TO 35 U.S.C AND C.F.R. 42

2 Table of Contents I. FORMALITIES... 1 A. Mandatory Notices Real Party in Interest (37 C.F.R. 42.8(b)(1)) Designation of Lead and Backup Counsel (37 C.F.R. 42.8(b)(3)) Notice of Service (37 C.F.R. 42.8(b)(4)) Related Matters (37 C.F.R. 42.8(b)(2))... 2 II. B. Grounds for Standing (37 C.F.R (a))... 2 C. Payment of Fees (37 C.F.R )... 2 STATEMENT OF THE PRECISE RELIEF REQUESTED AND THE REASONS THEREFOR (37 C.F.R (a))... 2 III. INTRODUCTION. 3 IV. THE 551 patent... 5 V. THE PERSON OF ORDINARY SKILL IN THE ART AND STATE OF THE ART... 7 VI. CLAIM CONSTRUCTION... 7 VII. THE PRIOR ART CITED IN THIS PETITION... 7 A. U.S. Patent No. 6,012,780 ( Duvernay )... 7 B. European Patent Application EP ( Van Meel )... 8 C. Analog Devices Dual-axis ADXL202 Accelerometer Datasheet... 8 D. U.S. Patent No. 5,620,236 ( McGrath )... 9 E. U.S. Patent No. 5,951,122 ("Murphy")..10 i

3 VIII. IDENTIFICATION OF GROUNDS FOR UNPATENTABILITY (37 C.F.R (b)) A. Ground 1: Claims 1-8 are Invalid Under 35 U.S.C. 103(a) in View of Duvernay and Van Meel Claim Claim Claim Claim Claim Claim Claim Claim B. Ground 2: Claims 3-6 are Invalid Under 35 U.S.C. 103(a) in View of Duvernay and ADXL202 Data Sheet Claim Claim Claim Claim 6.29 C. Ground 3: Claims 1-8 are Invalid Under 35 U.S.C. 103(a) in View of McGrath and Van Meel Claim Claim Claim Claim ii

4 5. Claim Claim Claim Claim 8.41 D. Ground 4: Claims 3-6 Are Invalid Under 35 U.S.C. 103(a) in view of McGrath and ADCL202 Data Sheet Claim Claim Claim Claim E. Ground 5: Claims 1-8 Are Invalid Under 35 U.S.C. 103(a) in view of Duvernay and Murphy Claim Claim Claim Claim Claim Claim Claim Claim 8.52 IX. CONCLUSION 52 iii

5 TABLE OF AUTHORITIES CASES Page(s) Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966) Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007)... 6, 14, 15, 27 FLIR Sys., Inc. v. Leak Surveys, Inc., IPR , -434, -608 and In Re Nilssen, 851 F.2d 1401 (Fed. Cir. 1988) STATUTES 35 U.S.C , 7, 8, 9, U.S.C passim 35 U.S.C OTHER AUTHORITIES 37 C.F.R. 42.8(b)... 1, 2 37 C.F.R (b) C.F.R (a) C.F.R C.F.R (b) C.F.R (a) C.F.R (b) iv

6 Cequent Exhibit 1001 U.S. Patent No. 6,837,551 Description ,837,551 Patent File History 1003 Declaration of expert, Dr. John Martens 1004 Curriculum Vitae for expert, Dr. John Martens 1005 U.S. Patent No. 6,012,780 ( Duvernay ) 1006 European Patent Publication EP ( Van Meel ) 1007 Certified English Translation of EP Analog Devices ADXL202 Data Sheet, Rev Accelerometer News Article, April 1998 Issue Analog Devices ADXL202 Technical Note 1011 Analog Devices ADXL50/ADXL05 Data Sheet 1012 U.S. Patent No. 5,620,236 ( McGrath ) 1013 The Art of Electronics by P.Howoritz and W.Hill ( Horowitz and Hill ) 1014 U.S. Patent No. 6,532,419 ( Begin ) 1015 U.S. Patent No. 6,308,134 ( Croyle ) 1016 Analog Devices ADXL202 Data Sheet, Pre-release version v

7 1017 U.S. Patent No. 5,801,507 ( Nakamura ) 1018 U.S. Patent No. 5,951,122 ( Murphy ) 1019 Declaration from Analog Devices, Jill Connolly vi

8 Petitioner Cequent Performance Products, Inc. ( Cequent ) submits this Petition seeking inter partes review of Claims 1-8 of U.S. Patent No. 6,837,551, titled Towed Vehicle Brake Controller ( the 551 patent ) in accordance with 35 U.S.C. 311 and 37 C.F.R It is our understanding that the 551 patent is currently owned by Hopkins Manufacturing Corporation although the last recorded assignment at the U.S. Patent and Trademark Office is to AP Products, Inc. I. FORMALITIES A. Mandatory Notices 1. Real Party in Interest (37 C.F.R. 42.8(b)(1)) Cequent Performance Products, Inc. ( Cequent ) is the real party-in-interest. 2. Designation of Counsel (37 C.F.R. 42.8(b)(3)) Lead Counsel Monte L. Falcoff (Reg. No. 37,617) HARNESS, DICKEY & PIERCE, P.L.C. P.O. BOX 828 Bloomfield Hills, Michigan (telephone) (facsimile) mlfalcoff@hdp.com Backup Counsel Timothy MacIntyre (Reg. No. 42,824) HARNESS, DICKEY & PIERCE, P.L.C. P.O. BOX 828 BLOOMFIELD HILLS, MICHIGAN (TELEPHONE) (FACSIMILE) tdmacintyre@hdp.com Pursuant to 37 C.F.R (b), Powers of Attorney accompany this Petition. 3. Notice of Service (37 C.F.R. 42.8(b)(4)) Please direct all correspondence to counsel at the above address. Petitioner consents to service at the above-referenced addresses. 1

9 4. Related Matters (37 C.F.R. 42.8(b)(2)) The 551 patent has been asserted in and would affect a decision in the following proceeding: Hopkins Manufacturing Corporation v. Cequent Performance Products, Inc., No. 2:14-cv-2208 (Kansas) filed on May 2, 2014 and served on May 13, B. Grounds for Standing (37 C.F.R (a)) Petitioner certifies that: (1) the 551 patent is eligible for inter partes review; and (2) Petitioner is not barred or estopped from requesting inter partes review of any claim of the 551 patent on the grounds identified in this Petition. C. Payment of Fees (37 C.F.R ) The undersigned authorizes the Office to charge the fee for this Petition as set forth in 37 C.F.R (a) to Deposit Acct. No The undersigned further authorizes the Office to charge any fee deficiency, or credit any overpayment, related to this Petition to Deposit Acct. No II. STATEMENT OF THE PRECISE RELIEF REQUESTED AND THE REASONS THEREFOR (37 C.F.R (a)) Petitioner seeks a final, written decision that challenged Claims 1-8 of the 551 patent are unpatentable as obvious pursuant to 35 U.S.C Claims 1, 2, 3, 4, 7 and 8 are independent claims. Claims 5 and 6 depend from claim 4. A specific listing of the challenged grounds and a comparison of the prior art to the 2

10 claims of the 551 patent, along with relevant declaration testimony from Petitioner s technical expert, Dr. John Martens, is provided below. III. INTRODUCTION The 551 patent relates generally to a brake controller for braking a towed vehicle. Exhibit Accelerometers were readily used in brake controllers to determine vehicle deceleration as admitted in the 551 patent. EX1001 at 3: Applicant of the 551 patent contends that use of a multi-axis accelerometer in brake controllers was patentable. See, e.g., EX1002 at pg 134. The use of multiaxis accelerometers, however, was prevalent in the field of vehicle control systems, including brake controllers, prior to the priority date of the 551 patent. For example, U.S. Patent No. 5,951,122 discloses a brake control system suitable for use in an automobile. EX1018 at 1:6-9. In one embodiment, a threeaxis accelerometer is used in a brake controller to measure vehicle deceleration. EX1018 at In other examples, multi-axis accelerometers were commonly used in vehicle navigation systems. U.S. Patent No. 6,532,419 teaches the use of a multi-axis accelerometer to avoid precise alignment of the accelerometer with certain axes of the vehicle. EX1014 at 1: Similarly, U.S. Patent Nos. 6,308,134 teaches constructing a multiple axes accelerometer by mounting two or three accelerometers orthogonal to one another and measuring acceleration in the longitudinal (nose to rear bumper) axis and lateral axis (left to right side) axis. 3

11 EX1015 at 1: Multi-axis accelerometers were also used in vehicle stability control systems as seen, for example in European Patent Publication EP EX1006. Given the prevalence of multi-axis accelerometers found in vehicle control systems before the priority date of the 551 patent, one skilled in the art of vehicle control systems would have found it obvious to incorporate a multi-axis accelerometer into a vehicle brake controller as claimed in the 551 patent. Moreover, the Petitioner contemplated incorporating a multi-axis accelerometer into one of their commercially available brake controllers prior to the priority date of the 551 patent. In the late 1990s, Tekonsha 1 introduced the PRODIGY electronic trailer brake controller. As early as 1997, Tekonsha received a data sheet describing Analog Devices Dual-axis ADLX202 Accelerometer and considered this accelerometer for use in its electronic trailer brake controller. EX1003 (Martens Decl.) at 57. Due to cost, Tekonsha initially release the PRODIGY brake controller with a single axis accelerometer and subsequently incorporated a multi-axis accelerometer when the cost of multi-axis accelerometers decreased. EX1003 (Martens Decl.) at 57. These events further demonstrate that one working in the field of brake controllers for towed vehicles would have found it obvious to interchange a multi-axis accelerometer with a single-axis accelerometer in a brake controller as claimed in the 551 patent. 1 Tekonsha was the predecessor to petitioner, Cequent Performance Products, Inc. 4

12 Cequent now petitions for an inter partes review because it would have been obvious to a person of ordinary skill in the art to replace a single-axis accelerometer with a two- or three-axis accelerometer in the context of a vehicle brake controller. In this Petition, Cequent demonstrates that, upon a full record of the prior art that was available to a person having ordinary skill in the art at the time of the filing of the priority application that subsequently resulted in the 551 patent, each of challenged Claims 1-8 is unpatentable. IV. SUMMARY OF THE 551 PATENT AND ITS PROSECUTION HISTORY The 551 patent issued on January 4, 2005, from application 10/408,500 that was filed April 7, 2003 and claims priority to application 09/292,790 filed on April 14, EX1001. The 551 patent relates generally to a brake controller for use in a towing vehicle. The brake controller includes a control module and a power module as best seen in Figure 1. The control module is mounted in the cab of a vehicle used for towing in such a manner that it can be easily seen and accessed by the driver. The control module is provided with an accelerometer which can read acceleration force in at least two axes, and a microprocessor which polls the accelerometer and sends braking control signal to the power module. See, e.g., abstract of EX

13 During the prosecution of the 551 patent, the underlying application was initially examined and rejected by the Examiner as set forth in an Office Action dated November 5, EX1002. In the Office Action, Claims were rejected under 35 U.S.C. 102(e) as being unpatentable over U.S. Patent No. 6,012,780 (Duvernay) while Claims 130, 131 and 137 were rejected under 35 U.S.C. 103(a) as being unpatentable over Duvernay in view of U.S. Patent No. 6,532,419 (Begin). EX1002. When responding to these rejections, the applicant argued that Duvernay did not disclose a multi-axis accelerometer. Applicant also argued that because Begin pertained to a vehicle navigation system it failed to provide any motivation to use a multi-axis accelerometer in a braking system. EX1002 at page 134. Following an in-person interview with the applicant, the examiner abruptly reversed course. In an Interview Summary, the examiner makes a conclusory statement that the rejections were overcome because Begin failed to provide any motivation to one skilled in the art to use the [multi-axis] accelerometer in a system for braking a towed vehicle (emphasis added). EX1002 at page 119. Rejections were withdrawn and the application proceeded to allowance. It is noteworthy that the prosecution of the 551 patent occurred prior to the Supreme Court s clarification on rationales for supporting obviousness rejections and its rejection of a rigid application of the teaching, suggestion or motivation test in KSR Intern. Co. v. Teleflex Inc., 82 USPQ2d 1385 (2007). 6

14 V. THE PERSON OF ORDINARY SKILL IN THE ART AND STATE OF THE ART Patent No. 6,837,551 Petitioner s expert witness, Dr. John Martens, opines that a person of ordinary skill in the art of the 551 patent would have a Bachelor of Science degree in electrical engineering or an equivalent discipline and at least three years of experience in designing electronic circuits and automotive-related systems, or, alternatively, the equivalent of two years of course work in an engineering discipline at the undergraduate level and at least ten years of experience in designing electronic circuit and automotive-related systems. EX1003 (Martens Decl.) at 18. VI. CLAIM CONSTRUCTION Unless otherwise addressed herein, the terms of the 551 patent s claims are to be given their broadest reasonable interpretation, as understood by one of ordinary skill in the art, in view of the 551 patent s specification and prosecution history. See 37 C.F.R (b). VII. THE PRIOR ART CITED IN THIS PETITION A. U.S. Patent No. 6,012,780 ( Duvernay ) Duvernay was filed on February 26, 1997 and issued on January 11, 2000 (EX1005). Duvernay is prior art to the 551 patent under 102(e) because it was filed over two years before the priority date of the 551 patent and has a priority 7

15 date three years earlier than the priority date of 551 patent. Duvernay was cited during the prosecution of the 551 patent and the Patent Owner did not dispute that it was prior art. B. European Patent Application EP ( Van Meel ) European Patent Application EP A published on April 23, 1997 and is attached hereto as EX1006 (with a certified translation attached as EX1007). Van Meel is prior art to the 551 patent under 102(b) as a printed publication with a publication date nearly two years before the priority date of the 551 patent. Van Meel was not considered during the prosecution of the 551 patent. C. Analog Devices Dual-axis ADXL202 Accelerometer Data Sheet Rev. 0 of the ADXL202 Dual-axis Accelerometer Data Sheet bears a notice of Analog Devices, Inc., 1998 (EX1008). The PTAB has found that the copyright notice on a document establishes a prior art date for the document. See, FLIR Sys., Inc. v. Leak Surveys, Inc., IPR , -434, -608 and -609 (Decision of Institution of Inter Partes Review, Paper 10, Sept. 5, 2014). Furthermore, as indicated by the print code of C /98 on the last page of the datasheet, this Rev. 0 version of the data sheet was published in March EX1019. It is the customary business practice of Analog Devices to upload a data sheet within a few days of sending to the printer. EX1019. Accordingly, the Rev. 0 version of the data sheet for the ADXL202 dual axis accelerometer would have 8

16 been upload to and freely accessible to the public on the company website, in March EX1019. Records at Analog Devices further indicate that 8,000 copies of the Rev. 0 version of the datasheet for the ADXL202 dual axis datasheet were printed and the printed copies of the data sheet would have been given to customers, freely available at trade shows, etc. beginning in March EX1019. Lastly, the ADXL202 Datasheet was publicly available at least as early as April 1998 as further evidenced at the top of the second column of the article entitled Using the ADXL202 with a Microcontroller in the Accelerometer News dated April 1998 EX1009. Thus, the ADXL202 Dual-axis Accelerometer Data Sheet is prior art to the 551 patent under 35 U.S.C. 102(b) as a printed publication because it was publicly available more than one year before the priority date of the 551 patent. The ADXL202 Data Sheet was not considered during prosecution of the 551 patent and is referred to herein as ADXL202 Publication. D. U.S. Patent No. 5,620,236 ( McGrath ) U.S. Patent No. 5,620,236 was filed on September 27, 1994 and issued on April 15, 1997 (EX1012). McGrath is prior art to the 551 patent under 102(b) because it issued as a patent more than one year before the priority date of the 551 patent. Furthermore, McGrath is not duplicative or cumulative with Duvernay. McGrath was not considered during the prosecution of the 551 patent. 9

17 E. U.S. Patent No. 5,951,122 ( Murphy ) Murphy was filed on December 31, 1997 and issued on September 14, 1999 (EX1018). Murphy is prior art to the 551 patent under 102(e) because it was filed sixteen months before the priority date of the 551 patent. Murphy was not considered during the prosecution of the 551 patent. VIII. IDENTIFICATION OF GROUNDS FOR UNPATENTABILITY (37 C.F.R (b)) Grounds: Petitioner requests cancellation of the challenged claims on the following Ground 1: Claims 1-8 of the 551 patent are invalid under 35 U.S.C. 103(a) as being obvious in view of Duvernay and Van Meel. Ground 2: Claims 3-6 of the 551 patent are invalid under 35 U.S.C. 103(a) as being obvious in view of Duvernay and ADXL202 Publication. Ground 3: Claims 1-8 of the 551 patent are invalid under 35 U.S.C. 103(a) as being obvious in view of McGrath and Van Meel. Ground 4: Claims 3-6 of the 551 patent are invalid under 35 U.S.C. 103(a) as being obvious in view of McGrath and ADXL202 Publication. Ground 5: Claims 1-8 of the 551 patent are invalid under 35 U.S.C. 103(a) as being obvious in view of Duvernay and Murphy. 10

18 A. Ground 1: Claims 1-8 of the 551 patent are invalid under 35 U.S.C. 103(a) in view of Duvernay and Van Meel. Duvernay discloses a brake control system for a trailer being towed by a towing vehicle. The following claim chart sets forth a comparison between Claim 1 of the 551 patent and the most relevant teachings of Duvernay. 1. Claim 1 1. A vehicle towing system which comprises: a towing vehicle for towing a towed Claim 1 of the 551 patent vs Duvernay (EX1005) Duvernay discloses a brake control system for a trailer being towed by a towing vehicle. The brake control system 10 is used to control brakes on a trailer being towed by a towing vehicle (see, e.g., col. 1, lines 8-11). vehicle having brakes; a brake controller; The brake control system 10 includes an accelerometer 12 and a microcontroller 14 and collectively form a brake controller (see, e.g., col. 3, lines 46-51). said brake controller including a multi-axis accelerometer; and circuitry to sum sensed accelerations of said multi-axis accelerometer and to sense braking forces on said towing vehicle; said circuitry being operable to cause the activation of the brakes of the towed vehicle in a manner that is insensitive to the position of the The brake control system 10 includes an accelerometer such as Analog Devices, Inc. ADX05 accelerometer having a resolution of 5g (see, e.g., col. 3, lines 46-50). More specifically, the accelerometer 12 provides an inclination control signal and a rate of decleration control signal to the microcontroller 14 that are indicative of the inclination and rate of decleration of the towing vehicle (see, e.g., col. 4, lines 7-10). The microcontroller 14 send a proportionate brake amperage output signal along the control line 18 to control the brake on the trailer (see, e.g., col 4, lines 11-14). Specifically, the accelerometer 12 monitors tilt so long as no input is received at pin number 15 of the 11

19 accelerometer. microcontroller 14. This tilt angle is continually updated and stored. Once the vehicle brake lights are engaged or the manual override switch is depressed, a signal is received at pin number 15. The signal from the accelerometer at input 16 of the microcontroller 14 is then processed as a rate of deceleration and uphill/downhill adjustments in the brake amperage are made in accordance with the last stored value of the title angle (see, e.g., col. 3, lines 58-67). During the prosecution of the 551 patent, applicant did not dispute any of the findings set forth in the chart above except for the occurrence of a multi-axis accelerometer. EX1002. The meaning of circuitry as recited in this claim is construed in accordance with the specification of the 551 patent. With reference to Figure 3 of the 551 patent (reproduced below), outputs 216, 222 of the accelerometer 212 serve as inputs to pins 214, 220 of microprocessor 118. EX1001 at 11:45-12:5. 12

20 Thus, microprocessor 118 serves as the circuity to sum sensed accelerations of the said multi-axis accelerometer and to sense braking forces on said towing vehicle as recited in Claim 1 of the 551 patent. Likewise, the microcontroller 14 in Duvernay processes the output signals from accelerometer 12 and generates a braking signal to control brakes on a trailer. EX1005 at 4:7-25. Thus, the microcontroller 14 in Duvernay is circuitry that senses braking forces and causes activation of the brakes as recited in claim 1 of the 551 patent. EX1003 (Martens Decl.) at 23. In the event that circuitry is narrowly construed to mean analog circuitry, it would have been obvious to a person skilled in the art to incorporate an analog summing circuit in between the accelerometer 12 and the microcontroller 14 of the brake control system in Duvernay. EX1003 (Martens Decl.) at 120. Furthermore, Duvernay teaches detecting tilt or inclination by processing lower bandwidth signals from the accelerometer. EX1005 at 3: By accounting for the tilt angle when computing the rate of deceleration, the microcontroller 14 in Duvernay also issues a brake control signal in a manner that accounts for the orientation of the accelerometer 12 and thus is insensitive to the position of the accelerometer. EX1005 at 3: Ascertaining the differences between the purported claimed invention of the 551 patent and the prior art, it is noted that Duvernay does not explicitly disclose 13

21 summing sensed accelerations from a multi-axis accelerometer. Graham v. John Deere Co., 148 USPQ 459, 467 (1966). Van Meel discloses a device for detecting vehicle tilt. Two acceleration sensors S1, S2 are arranged transverse to each other and together form a multi-axis accelerometer as shown in Figure 1. EX1006. As long as the vehicle is not tilted, the angles reported by the acceleration sensors S1, S2 in relation to the horizontal plane are the same. EX1006 in abstract. When vehicle tilt occurs, the angles reported by the acceleration sensors S1, S2 differ as shown in Figure 2. EX1006. Vehicle tilt is in turn computed in part by adding and subtracting signals from the two acceleration sensors S1, S2 as indicated in equations (9) and (10). EX1006 at pg 2. In other words, Van Meel teaches summing sensed accelerations of a multiaxis accelerometer in a vehicle control system. EX1003 (Martens Decl.) at 70. Moreover, Van Meel teaches that this type of arrangement can be used in an analogous manner to compute vehicular longitudinal acceleration. EX1006 at page 2, last sentence. Duvernay and Van Meel are both concerned with determining longitudinal acceleration of a vehicle and thus are trying to resolve the same problem. There must be some articulated reasoning with some rationale underpinning to support the legal conclusion of obviousness. KSR Intern. Co. v. Teleflex Inc., 82 USPQ2d at Applying a known technique to a known device ready for improvement to 14

22 yield predictable results is one rationale that may support a conclusion of obviousness as applied by the courts. In Re Nilssen, 851 F.2d 1401 (Fed. Cir. 1988). See also, KSR, 82 USPQ2d at 1395 and MPEP Duvernay recognizes limitations associated with a single-axis accelerometer and compensates for tilt angle when computing the rate of deceleration. EX1005 at 3: Van Meel also accounts for tilt when computing vehicle acceleration but does so by explicitly measuring the vehicle s tilt angle. A larger degree of freedom in the mounting angle of the controller can also be achieved through the use of a multi-axis accelerometer. Van Meel provides motivation to improve a brake control system to create a device of the type initially specified which allows vehicular tilt and/or vehicular acceleration to be reliably determined. EX1006 at line 10 on page 1. Van Meel further suggests in the first paragraph on page 3 of English translation that such techniques are suitable for vehicle braking applications as well. EX1006. Accordingly, it would have been obvious to one of ordinary skill in the art as of April 14, 1999 to apply the known technique of computing longitudinal acceleration using a multi-axis accelerometer as taught by Van Meel to the brake control system in Duvernay to predictably yield an accurate acceleration measure. EX1003 (Martens Decl.) at and 123. In sum, each element of Claim 1 of the 551 patent is disclosed by Duvernay in combination with Van Meel and therefore is unpatentable as obvious under 35 U.S.C. 103(a). 15

23 2. Claim 2 Claim 2 recites limitations similar to Claim 1 as seen in the following claim chart. Claim 2 of the 551 patent vs Duvernay (EX1005) 2. A method of applying the brakes of a towed vehicle when it is in association with a towing vehicle, including the steps of: providing a brake controller, said brake controller including a multi-axis accelerometer; sensing braking forces on said towing vehicle; summing sensed accelerations of said multi-axis accelerometer; and activating the brakes of the towed vehicle in response to said summing and sensing steps. Duvernay discloses a brake control system for a trailer being towed by a towing vehicle. The brake control system 10 includes an accelerometer 12 and a microcontroller 14 and collectively form a brake controller (see, e.g., col. 3, lines 46-51). The brake control system 10 includes an accelerometer such as Analog Devices, Inc. ADX05 accelerometer having a resolution of 5g (see, e.g., col. 3, lines 46-50). The accelerometer 12 is used to sense the rate of deceleration for the towing vehicle (see, e.g., col. 3, lines 51-55). The microcontroller 14 send a proportionate brake amperage output signal along the control line 18 to control the brake on the trailer (see, e.g., col 4, lines 11-14). 16

24 Duvernay does not explicitly disclose summing sensed accelerations from a multiaxis accelerometer; whereas, Van Meel teaches computing longitudinal acceleration through the use of a multi-axis accelerometer. For the reasons explained above as to Claim 1, it would be obvious to one of ordinary skill in the art as of April 14, 1999 to apply the known technique of computing longitudinal acceleration in Van Meel to the brake control system disclosed in Duvernay. EX1003 (Martens Decl.) at and 129. Therefore, Claim 2 is unpatentable as obvious under 35 U.S.C. 103(a). 3. Claim 3 Independent Claim 3 differs from Claim 1 in that it adds limitations pertaining to power drivers while omitting summing of sensed accelerations. The following claim chart sets forth a comparison between Claim 3 of the 551 patent and the most relevant teachings of Duvernay. Claim 3 of the 551 patent vs Duvernay (EX1005) 3. A method of applying the brakes of a towed vehicle when it is in association with a towing vehicle, including the steps of: providing a brake controller including a multi-axis accelerometer; Duvernay discloses a brake control system for a trailer being towed by a towing vehicle. The brake control system 10 includes an accelerometer 12 and a microcontroller 14 and collectively form a brake controller (see, e.g., col. 3, lines 46-51). The brake control system 10 includes an accelerometer 17

25 providing a microprocessor; generating braking signals in response to braking situations in the towing vehicle; providing power drivers; and connecting said power drivers such that said braking signals cause said power drivers to engage the brakes of the towed vehicle. such as Analog Devices, Inc. ADX05 accelerometer having a resolution of 5g (see, e.g., col. 3, lines 46-50) The brake control system 10 includes a microcontroller 14 (see, e.g., col. 3, lines 46-51). The microcontroller 14 sends a proportionate brake amperage output signal along the control line 18 to control the brake on the trailer (see, e.g., col 4, lines 11-14). Amplifier 16 as seen in Figure 1. The microcontroller 14 instantaneously processes this information and through its operative connection to the amplifier 16 sends a proportionate brake amperage output signal along the control line to control the brakes on the trailer (see, e.g., col 4, lines 11-14). Persons of ordinary skill in the art are deemed to read the claim terms not only in the context of the particular claim in which the term appears but in the context of the entire patent, including the specification and the prosecution history. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005). As it relates to the claim term power drivers, the specification of the 551 patent states that power drivers for supplying power to activate the brakes of the towed vehicle. EX1001 at 6: Consistent with this stated function, one skilled in the art would understand power drivers to mean transistors forming an amplifier circuit that drives a load, such as trailer brakes. EX1003 (Martens Decl.) at 25. In the 551 patent, an example of power drivers are transistors 302 and 304 as seen in Figure 5. For purposes of setting forth the grounds for unpatentability in this petition, the term power 18

26 drivers has been interpreted to mean two or more transistors forming an amplifier circuit. With reference to Figure 1 of Duvernay (reproduced below), the amplifier 16 is a power driver as that term is understood by one skilled in the art and would comprise several power drivers (e.g., MOSFETs) as needed. EX1003 (Martens Decl.) at 134. Duvernay does not explicitly disclose the use of a multi-axis accelerometer; whereas, Van Meel teaches computing longitudinal acceleration through the use of a multi-axis accelerometer. For the reasons explained above in relation to Claim 1, it would be obvious to one skilled in the art to apply the known technique of computing longitudinal acceleration using a multi-axis accelerometer as taught by Van Meel to the brake control system disclosed in Duvernay. EX1003 (Martens Decl.) at and 136. Therefore, Claim 3 is unpatentable under 35 U.S.C. 103(a). 19

27 4. Claim 4 Claim 4 differs from Claim 1 in that it adds limitations of polling said multi-access accelerometer (understood to be multi-axis ) and computing changes in acceleration forces while omitting summing of sensed accelerations. The following claim chart sets forth a comparison between Claim 4 of the 551 patent and the most relevant teachings of Duvernay. Claim 4 of the 551 patent vs Duvernay (EX1005) 4. A method of applying the brakes of a towed vehicle when it is in association with a towing vehicle, including the steps of: providing a brake controller including a multi-axis accelerometer; providing a microprocessor; via said accelerometer, sensing forces in at least two axes of movement of the towing vehicle; via said microprocessor, polling said multiaccess accelerometer to determine Duvernay discloses a brake control system for a trailer being towed by a towing vehicle. The brake control system 10 includes an accelerometer 12 and a microcontroller 14 and collectively form a brake controller (see, e.g., col. 3, lines 46-51). The brake control system 10 includes an accelerometer such as Analog Devices, Inc. ADX05 accelerometer having a resolution of 5g (see, e.g., col. 3, lines 46-50). The brake control system 10 includes a microcontroller 14. The accelerometer 12 is used to sense the rate of deceleration for the towing vehicle (see, e.g., col. 3, lines 51-55). The accelerometer 12 monitors tilt so long as no input is received at pin number 12 of the microcontroller 14. This tilt angle is continually updated and stored (see, e.g., col. 3, line 58-61). 20

28 acceleration forces on the towing vehicle; computing changes in acceleration forces on the towing vehicle and generating a braking signal in response thereto; braking the towed vehicle in response to said braking signals. Once the vehicle brake lights are engaged, a signal is received at pin number 15. The signal from the accelerometer at input 16 of the microcontroller 14 is then processed as a rate of deceleration and uphill/downhill adjustments in the brake amperage are made in accordance with the last stored value of the tilt angle (see, e.g., col. 3, lines 61-67). The microcontroller 14 send a proportionate brake amperage output signal along the control line 18 to control the brake on the trailer (see, col 4, lines 11-14). By accounting for the tilt angle when computing the rate of deceleration, Duvernay computes changes in acceleration relative to a baseline in the same manner as described in the 551 patent (compare EX1005 3:58-67 to EX1001 at 6:57-65). Duvernay does not explicitly disclose the use of a multi-axis type of accelerometer. On the other hand, Van Meel teaches computing longitudinal acceleration through the use of a multi-axis accelerometer. For the reasons explained above in relation to Claim 1, it would be obvious to one skilled in the art to apply the known technique of computing longitudinal acceleration as taught by Van Meel into the brake control system disclosed in Duvernay. EX1003 (Martens Decl.) at and 144. Therefore, Claim 4 is unpatentable under 35 U.S.C. 103(a). 21

29 5. Claim 5 Claim 5 depends from Claim 4 and further recites providing power drivers and connecting said power drivers such that said braking signals cause said power drivers to engage the brakes of the towed vehicles. As discussed above in relation to Claim 3, Duvernay teaches an amplifier 16 that is understood to be a power driver and would comprise multiple power drivers (e.g., MOSFETs) as needed. EX1003 (Martens Decl.) at 146. Duvernay does not explicitly disclose the use of a multi-axis accelerometer; whereas, Van Meel teaches computing longitudinal acceleration through the use of a multi-axis accelerometer. For the reasons explained above in relation to Claim 1, it would be obvious to one skilled in the art to apply the known technique of computing longitudinal acceleration using a multiaxis accelerometer as taught by Van Meel into the brake control system disclosed in Duvernay. EX1003 (Martens Decl.) at and 147. Therefore, Claim 5 is unpatentable under 35 U.S.C. 103(a). 6. Claim 6 Claim 6 depends from Claim 4 and further recites coupling said microprocessor to the braking system of the towing vehicle, with said microprocessor generating a braking signal in response to changes in forces computed from reading the accelerometer only when the brakes of the towing vehicle are engaged as sensed by said microprocessor. In the 551 patent, brake 22

30 light line 36 provides a determination that braking is occurring in the towing vehicle and microprocessor 118 generates a braking signal upon receiving the brake light signal. EX1001 at 15:32. In a similar manner, Duvernay teaches a wire conductor 22 is connected between the brake light circuit of the towing vehicle and the controller 14. [and] the controller 14 is programmed so as to only provide a brake amperage output signal along line 18 proportionate to the sensed inclination and rate of deceleration when the towing vehicle brakes have been engaged or activated. EX1005 at 4: Accordingly, each element of Claim 6 of the 551 patent is disclosed by Duvernay in combination with Van Meel EX1003 (Martens Decl.) at 150 and therefore is unpatentable as obvious under 35 U.S.C. 103(a). 7. Claim 7 Claim 7 recites limitations similar to Claim 1 as seen in the following claim chart. Claim 7 of the 551 patent vs Duvernay (EX1005) 7. A method of applying the brakes of a towed vehicle when it is in association with a towing vehicle, including the steps of: providing a brake controller, said brake controller including a Duvernay discloses a brake control system for a trailer being towed by a towing vehicle. The brake control system 10 includes an accelerometer 12 and a microcontroller 14 and collectively form a brake controller (see, e.g., col. 3, lines 46-51). 23

31 multi-axis accelerometer; via said accelerometer, determining the force of braking by determining the acceleration in two axes; summing the acceleration in one axis with the acceleration in the other axis to determine the total acceleration; providing braking signals to a microprocessor in response to the determined total acceleration; and activating the brakes of the towed vehicle in response to signals provided by said microprocessor. The brake control system 10 includes an accelerometer such as Analog Devices, Inc. ADX05 accelerometer having a resolution of 5g (see, e.g., col. 3, lines 46-50). The accelerometer 12 is used to sense the rate of deceleration for the towing vehicle (see, e.g., col. 3, lines 51-55). The accelerometer provides signals indicating the rate of deceleration to the microcontroller 14 (see, e.g., col. 4, lines 7-10). The microcontroller 14 send a proportionate brake amperage output signal along the control line 18 to control the brake on the trailer (see, e.g., col 4, lines 11-14). Duvernay does not explicitly disclose summing sensed accelerations from a multiaxis accelerometer; whereas, Van Meel teaches computing longitudinal acceleration through the use of a multi-axis accelerometer. For the reasons explained above in relation to Claim 1, it would be obvious to one skilled in the art to apply the known technique of computing longitudinal acceleration in Van Meel 24

32 to the brake control system disclosed in Duvernay. EX1003 (Martens Decl.) at and 157. Therefore, Claim 7 is unpatentable as obvious under 35 U.S.C. 103(a). Claim 8 Claim 8 recites limitations similar to Claim 1 as seen in the following claim chart. Claim 8 of the 551 patent vs Duvernay (EX1005) 8. A method of applying the brakes of a towed vehicle when it is in an association with a towing vehicle, including the steps of, providing a brake controller, said brake controller including a multi-axis accelerometer, sensing braking forces on said towing vehicles; summing sensed accelerations of said multi-axis accelerometer; activating the brakes of the towed vehicle in response to said summing and said sensing steps in a Duvernay discloses a brake control system for a trailer being towed by a towing vehicle. The brake control system 10 includes an accelerometer 12 and a microcontroller 14 and collectively form a brake controller (see, e.g., col. 3, lines 46-51). The brake control system 10 includes an accelerometer such as Analog Devices, Inc. ADX05 accelerometer having a resolution of 5g (see, e.g., col. 3, lines 46-50). The accelerometer 12 is used to sense the rate of deceleration for the towing vehicle (see, e.g., col. 3, lines 51-55). The microcontroller 14 send a proportionate brake amperage output signal along the control line 18 to control the brake on the trailer (see, e.g., col 4, lines 11-14). 25

33 manner that is insensitive to the position of the accelerometer. Specifically, the accelerometer 12 monitors tilt so long as no input is received at pin number 15 of the microcontroller 14. This tilt angle is continually updated and stored. Once the vehicle brake lights are engaged or the manual override switch is depressed, a signal is received at pin number 15. The signal from the accelerometer at input 16 of the microcontroller 14 is then processed as a rate of deceleration and uphill/downhill adjustments in the brake amperage are made in accordance with the last stored value of the title angle (see, e.g., col. 3, lines 58-67). Duvernay does not explicitly disclose summing sensed acceleration from a multiaxis accelerometer; whereas, Van Meel teaches computing longitudinal acceleration through the use of a multi-axis accelerometer. For the reasons explained above in relation to Claim 1, it would be obvious to one skilled in the art to apply the known technique of computing longitudinal acceleration as taught by Van Meel to the brake control system disclosed in Duvernay. EX1003 (Martens Decl.) at and 165. Therefore, Claim 8 is unpatentable as obvious under 35 U.S.C. 103(a). B. Ground 2: Claims 3-6 of the 551 patent are invalid under 35 U.S.C. 103(a) in view of Duvernay and ADXL202 Publication. 1. Claim 3 For a comparison between Claim 3 and the teachings of Duvernay, see chart for Claim 3 of Ground 1 above. Of note, Duvernay teaches that the accelerometer 12 in the brake control system 10 can be an ADX05 single-axis accelerometer from 26

34 Analog Devices. Duvernay also teaches an amplifier 16 that is understood to be a power driver and would have comprised several power drivers (e.g., MOSFETs) as needed. EX1003 (Martens Decl.) at 162. Duvernay does not explicitly disclose the use of a multi-axis accelerometer. Multi-axis accelerometers, however, were readily known and commercially available prior to the priority date of the 551 patent. EX1003 (Martens Decl.) at In fact, multiple types of multi-axis accelerometers were commercially available from Analog Devices, including the 2g dual-axis ADLX202 accelerometer. EX1008. Simply substituting one known element for another to obtain predictable results is a recognized rationale. KSR, 82 USPQ2d at In this case, it would be obvious to one skilled in the art to simply substitute one accelerometer with another accelerometer from the same manufacturer. Specifically, it would be obvious to one skilled in the art to replace Analog Devices s ADX05 accelerometer in the brake control system 10 of Duvernay with Analog Devices s ADXL202 dual-axis accelerometer as described in the attached datasheet. EX1003 (Martens Decl.) at and 172. Furthermore, Duvernay teaches compensating for tilt angle when computing the rate of deceleration. EX1005 at 3: Likewise, the published datasheet for the ADXl202 accelerometer teaches how to use the dual-axis accelerometer as a tilt sensor. EX1008 at page 9. Computing tilt using a dual-axis accelerometer as 27

35 taught by the ADXL202 publication provides further rationale for incorporating the ADXL202 accelerometer into the brake control system disclosed in Duvernay to predictably yield an accurate longitudinal acceleration measure. EX1003 (Martens Decl.) at 89. Accordingly, each element of claim 3 of the 551 patent is disclosed by Duvernay in combination with the ADXL202 publication and is unpatentable as obvious under 35 U.S.C. 103(a). 2. Claim 4 Claim 4 differs from Claim 3 in that it adds limitations of polling said multi-access accelerometer and computing changes in acceleration forces while omitting any reference to power drivers. For a comparison between Claim 4 and the teachings of Duvernay, see chart for Claim 4 of Ground 1 above. Duvernay does not explicitly disclose the use of a multi-axis accelerometer. Multi-axis accelerometers, including Analog Devices s ADXL202 accelerometer, were readily known and commercially available prior to the priority date of the 551 patent. For the reasons explained above in relation to Claim 3, it would be obvious to one skilled in the art to simply substitute Analog Devices s ADXL202 dual-axis accelerometer as set forth in the accompanying data sheet (EX1008) for Analog Devices s ADX05 accelerometer in the brake control system of Duvernay. EX1003 (Martens Decl.) at and 180. Therefore, Claim 4 is unpatentable as obvious under 35 U.S.C. 103(a). 28

36 3. Claim 5 Claim 5 depends from Claim 4 and further recites providing power drivers and connecting said power drivers such that said braking signals cause said power drivers to engage the brakes of the towed vehicles. Duvernay teaches an amplifier 16 which is understood to be a power driver and would comprise several power drivers (e.g., MOSFETs) as needed. EX1003 (Martens Decl.) at 182. Accordingly, each limitation of Claim 5 is disclosed by Duvernay in combination with the ADXL202 publication. EX1003 (Martens Decl.) at 183 and therefore is unpatentable as obvious under 35 U.S.C. 103(a). 4. Claim 6 Claim 6 of the 551 patent depends from Claim 4 and further recites coupling said microprocessor to the braking system of the towing vehicle, with said microprocessor generating a braking signal in response to changes in forces computed from reading the accelerometer only when the brakes of the towing vehicle are engaged as sensed by said microprocessor. In the 551 patent, brake light line 36 provides a determination that braking is occurring in the towing vehicle and microprocessor 118 generates a braking signal upon receiving the brake light signal. EX1001 at 15:32. In a similar manner, Duvernay teaches a wire conductor 22 is connected between the brake light circuit of the towing vehicle and the controller

37 [and] the controller 14 is programmed so as to only provide a brake amperage output signal along line 18 proportionate to the sensed inclination and rate of deceleration when the towing vehicle brakes have been engaged or activated. EX1005 at 4: Accordingly, each limitation of Claim 6 is disclosed by Duvernay in combination with the ADXL202 publication EX1003 (Martens Decl.) at 186 and therefore is unpatentable as obvious under 35 U.S.C. 103(a). C. Ground 3: Claims 1-8 of the 551 patent are invalid under 35 U.S.C. 103(a) in view of McGrath and Van Meel. McGrath discloses an electronic brake controller for actuating brakes of a towed vehicle. The following claim chart sets forth a comparison between Claim 1 and the most relevant teachings of McGrath. 1. Claim 1 Claim 1 of the 551 patent vs. McGrath (EX1012) 1. A vehicle towing system which comprises: a towing vehicle for towing a towed vehicle having brakes; a brake controller; said brake controller including a multi-axis accelerometer; and McGrath discloses an electronic brake controller for a towed vehicle. The electronic brake controller 11 is used to actuate electrically operated brakes in a towed vehicle (see, e.g., col. 3, lines 33-38). Figure 2 is a block diagram of the electronic brake controller 11. With reference to Figure 2, the brake controller 11 includes a brake control signal generator 52. The generator 52 senses a change in a towing vehicle parameter and automatically generates an analog brake control signal which is proportional to the braking force applied to the towing vehicle. In the preferred embodiment, an acceleration sensor generates a voltage 30

38 circuitry to sum sensed accelerations of said multi-axis accelerometer and to sense braking forces on said towing vehicle; said circuitry being operable to cause the activation of the brakes of the towed vehicle in a manner that is insensitive to the position of the accelerometer. proportional to the deceleration of the towing vehicle (see, e.g., col. 5, lines 56-66). When operating in the automatic mode, the controller 11 senses braking force applied to the towing vehicle and supplies an electric current through line 12 to actuate the towed vehicle brakes. The electric current is directly proportional to the braking forces applied to the towing vehicle (see e.g., col. 4, lines 6-12). The generator 52 senses a change in a towing vehicle parameter and automatically generates an analog brake control signal which is proportional to the braking force applied to the towing vehicle (see, col. 5, lines 58-61). In the 551 patent, the microprocessor 118 serves as the circuity to sum sensed accelerations of the said multi-axis accelerometer and to sense braking forces on said towing vehicle. Similarly, the microprocessor 45 in McGrath receives digitized brake control signals from the brake control signal generator 52 and generates a brake control signal. EX1012 at 5: McGrath does not explicitly disclose summing sensed accelerations from a multi-axis accelerometer. Van Meel teaches summing sensed accelerations of a multi-axis accelerometer in a vehicle control system. Moreover, Van Meel teaches 31

39 that this type of arrangement can also be used in an analogous manner to compute vehicular longitudinal acceleration. EX1006 at pg 2, last sentence. McGrath and Van Meel are both concerned with determining longitudinal acceleration of a vehicle and seek to resolve this same problem. In McGrath, the brake control signal generator 52 senses vehicle accelerations. EX 1012 at 5: McGrath also teaches that other types of devices can be used in place of the brake control signal generator 52 to sense vehicle acceleration. EX1012 at 5:62 ( various devices can be used for generating the brake control signal ). In view of the limitations associated with the pendulum-based sensor along with the suggestion by McGath that other types of sensors may be employed, one would naturally look to Van Meel to create a device of the type initially specified which allows vehicular tilt and/or vehicular acceleration to be reliably determined. EX1006 at line 10 on page 1. Replacing the pendulum-based accelerometer in McGrath with a dual-axis accelerometer would have been an obvious design choice to one skilled in the art. EX1003 (Martens Decl.) at 103. Van Meel further teaches that such techniques are suitable for braking applications as well. EX1006 at pg 3, first paragraph. It would have been obvious to one skilled in the art to apply the known technique of computing longitudinal acceleration using a multiaxis accelerometer as taught by Van Meel to the brake controller in McGrath to predictably yield an accurate acceleration measure. EX1003 (Martens Decl.) at 32