UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD

Transcription

1 Filed on behalf of Hopkins Manufacturing Corporation and The Coast Distribution System, Inc. By: Scott R. Brown Matthew B. Walters HOVEY WILLIAMS LLP Mastin Blvd., Suite 1000 Overland Park, Kansas Tel: (913) Fax: (913) IPR Filed: January 23, 2015 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD HOPKINS MANUFACTURING CORPORATION and THE COAST DISTRIBUTION SYSTEM, INC. Petitioners v. CEQUENT PERFORMANCE PRODUCTS, INC. Patent Owner Case No. IPR U.S. Patent No. 6,445,993 Before: To be determined PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 6,445,993.

2 TABLE OF CONTENTS I. MANDATORY NOTICES UNDER 37 C.F.R II. REQUIREMENTS FOR INTER PARTES REVIEW... 2 A. Payment of Fees Under 37 C.F.R (a) and B. Certification of Grounds for standing... 2 C. Identification of Challenge Claims for Which Inter Partes Review is Requested under 37 C.F.R (b)(1) Identification of the Specific Art and Statutory Grounds on Which the Challenge is Based under 37 C.F.R (b)(2) How the Construed Claims Are Unpatentable and Supporting Evidence under 37 C.F.R (b)(4), (5) III. SUMMARY OF THE 993 PATENT... 4 A. The Subject Matter of the 993 Patent... 4 B. Prosecution History Summary of the 993 Patent... 5 C. How the Challenged Claims Are to be Construed under 37 C.F.R (b)(3) IV. THE PRIOR ART A. U.S. Patent No. 5,620,236 to McGrath et al. (Exhibit 1004) is Prior Art under 35 U.S.C. 102(b) B. U.S. Patent No. 6,837,551 to Robinson et al. (Exhibit 1004) is Prior Art under 35 U.S.C. 102(e) ii

3 C. U.S. Patent No. 6,179,390 to Guzorek et al. (Exhibit 1005) is Prior Art under 35 U.S.C. 102(e) D. U.S. Patent No. 5,333,948 to Austin et al. (Exhibit 1006) is Prior Art under 35 U.S.C. 102(b) V. THERE IS A REASONABLE LIKELIHOOD THAT AT LEAST ONE CLAIM OF THE 993 PATENT IS UNPATENTABLE UNDER 37 C.F.R (B)...14 VI. DETAILED EXPLANATION UNDER 37 C.F.R (B)...22 A. Ground 1: Claims 1, 2, 9, 11, 14, 15, 22, and 24 of U.S. Patent No. 6,445,993 are Unpatentable Under 35 U.S.C. 102(b) as Being Anticipated by U.S. Patent No. 5,620,236 to McGrath et al. (Ex. 1003)...22 B. Ground 2: Claims 5, 7, 18, 20, 27, 28, 31, 33, 35, and 37 of U.S. Patent No. 6,445,993 Patent are Invalid Under 35 U.S.C. 103(a) as Being Obvious over U.S. Patent No. 5,620,236 to McGrath et al. (Ex. 1003) in view of U.S. Patent No. 6,837,551 to Robinson et al. (Ex. 1004) C. Ground 3: Claims 1, 2, 5, 14, 15, 18, 27, 28, and 31 of U.S. Patent No. 6,445,993 are Unpatentable Under 35 U.S.C. 102(e) as Being Anticipated by U.S. Patent No. 6,837,551 to Robinson et al. (Ex. 1004)...40 D. Ground 4: Claims 4, 11, 17, 24, 30, and 37 of U.S. Patent No. 6,445,993 are Unpatentable Under 35 U.S.C. 103(a) as Being Obvious over U.S. Patent No. 6,837,551 to Robinson et al. (Ex. 1004) in view of U.S. Patent No. 6,179,390 to Guzorek et al. (Ex. 1005) E. Ground 5: Claims 9, 22, and 35 of U.S. Patent No. 6,445,993 Patent are Invalid Under 35 U.S.C. 103(a) as Being Obvious over U.S. Patent No. 6,837,551 to Robinson et al. (Ex. 1004) in view of U.S. Patent No. 5,333,948 to Austin et al. (Ex. 1006) VII. CONCLUSION...58 CERTIFICATE OF SERVICE ON PATENT OWNER...60 iii

4 APPENDIX OF EXHIBITS Exhibit Description Statement of Relevance Filed 1001 U.S. Patent No. Patent at issue 6,445, Prosecution History Prosecution History of U.S. Patent No. of U.S. Patent No. 6,445,993 6,445, U.S. 5,620,236 to Prior art to U.S. Patent No. 6,445,993 McGrath et al U.S. Patent No. Prior art to U.S. Patent No. 6,445,993 6,837,551 to Robinson et al U.S. Patent No. Prior art to U.S. Patent No. 6,445,993 6,179,390 to Guzorek et al U.S. Patent No. Prior art to U.S. Patent No. 6,445,993 5,333,948 to Austin et al U.S. Patent No. Prior art to U.S. Patent No. 6,445,993 4,726,627 to Frait et al Declaration of Dr. Expert Declaration regarding validity of Mark Horenstein 1009 Analog Device 1999 data sheet for ADXL U.S. Patent No. 974,943 to Wood claims of patent at issue Prior art to U.S. Patent No. 6,445,993 cited in Declaration (Ex. 1008). Prior art to U.S. Patent No. 6,445,993 cited in Declaration (Ex. 1008). iv

5 On behalf of Hopkins Manufacturing Corporation ( Hopkins ) and The Coast Distribution System, Inc. ( Coast ) and in accordance with 35 U.S.C. 311 and 37 C.F.R et seq., inter partes review is requested for claims 1, 2, 4, 5, 7, 9, 11, 14, 15, 17, 18, 20, 22, 24, 27, 28, 30, 31, 33, 35, and 37 of U.S. Patent No. 6,445,993 ( the 993 Patent ) (Ex. 1001). I. MANDATORY NOTICES UNDER 37 C.F.R Real Parties-In-Interest: Hopkins Manufacturing Corporation and The Coast Distribution System, Inc. Related Matters: Petitioners are aware of the following related matter: Cequent Performance Products, Inc. v. Hopkins Manufacturing Corporation et al., No. 2:13-cv pending in the Eastern District of Michigan before Honorable Judge Leitman (the Litigation ). Lead and Back-Up Counsel and Service Information: Lead Counsel Scott R. Brown (Reg. No. 40,535) HOVEY WILLIAMS LLP Mastin Blvd., Suite 1000 Overland Park, Kansas srb@hoveywilliams.com Telephone: (913) Fax: (913) Back-Up Counsel Matthew B. Walters (Reg. No. 65,343) HOVEY WILLIAMS LLP Mastin Blvd., Suite 1000 Overland Park, Kansas mbw@hoveywilliams.com Telephone: (913) Fax: (913) Hopkins and Coast consent to electronic service by at the above listed addresses of lead and back-up counsel. 1

6 II. REQUIREMENTS FOR INTER PARTES REVIEW A. Payment of Fees Under 37 C.F.R (a) and The required fees are submitted herewith. If any additional fees are due at any time during this proceeding, the Office is authorized to charge such fees to Deposit Account No B. Certification of Grounds for standing Hopkins and Coast certify that the 993 Patent is available for inter partes review. Specifically: (1) Petitioners are not owners of the 993 Patent; (2) before the date on which this petition for review is filed, neither Petitioners nor any real party-in-interest filed a civil action challenging the validity of a claim of the 993 Patent; (3) Petitioners have not filed this petition more than one year after the date on which Petitioners, Petitioners real party-in-interest, or a privy of Petitioners were served with a complaint alleging infringement of the 993 Patent; and (4) Petitioners, Petitioners real party-in-interest, or a privy of Petitioners are not estopped from challenging the claims on the grounds identified herein. C. Identification of Challenge 1. Claims for Which Inter Partes Review is Requested under 37 C.F.R (b)(1). 2

7 Hopkins and Coast request inter partes review of claims 1, 2, 4, 5, 7, 9, 11, 14, 15, 17, 18, 20, 22, 24, 27, 28, 30, 31, 33, 35, and 37 of U.S. Patent No. 6,445,993 and that these claims be found unpatentable. 2. Identification of the Specific Art and Statutory Grounds on Which the Challenge is Based under 37 C.F.R (b)(2). Petitioners request inter partes review based on the following prior art: Exhibit Prior Art Description Publication/Issue Date Ex U.S. Patent No. 5,620,236 to McGrath et al. April 5, 1997 Ex U.S. Patent No. 6,837,551 to Robinson et al. April 21, 1998 Ex U.S. Patent No. 6,179,390 to Guzorek et al. January 30, 2001 Ex U.S. Patent No. 5,333,948 to Austin et al. August 2, 1994 Petitioners request inter partes review based on the following grounds: Ground Claim(s) 1 1, 2, 11, 14, 15, , 7, 18, 20, 27, 28, 31, 33, 35, and , 2, 5, 14, 15, 18, 27, 28, and , 17, and , 22, and 35 Proposed Statutory Rejections for the 993 Patent Unpatentable under 35 U.S.C. 102(b) as Being Anticipated by McGrath et al. Unpatentable under 35 U.S.C. 103(a) as Being Obvious over McGrath et al. in view of Robinson et al. Unpatentable under 35 U.S.C. 102(e) as Being Anticipated by Robinson et al. Unpatentable under 35 U.S.C. 103(a) as Being Obvious over Robinson et al. in view of Guzorek et al. Unpatentable under 35 U.S.C. 103(a) as Being Obvious over Robinson et al. in view of Austin et al. 3

8 3. How the Construed Claims Are Unpatentable and Supporting Evidence under 37 C.F.R (b)(4), (5). The following requirements are provided in Sections V-VI, below: (1) an explanation of how construed claims 1, 2, 4, 5, 7, 9, 11, 14, 15, 17, 18, 20, 22, 24, 27, 28, 30, 31, 33, 35, and 37 of the 993 Patent are unpatentable under the statutory grounds identified above, including the identification of where each element of the claim is found in the prior art patents or printed publications; and (2) the exhibit numbers of the supporting evidence relied upon to support the challenge and the relevance of the evidence to the challenge raised, including identifying specific portions of the evidence that support the challenge. III. SUMMARY OF THE 993 PATENT A. The Subject Matter of the 993 Patent The 993 Patent generally concerns a brake control unit for controlling braking of a towed vehicle. The brake control unit includes a processor that automatically acquires an operating point of a brake control signal when the brake control unit is mounted within a range of operating positions. (Ex. 1001, Abstract). The 993 Patent defines the operating point as a reference level set by the accelerometer s output immediately prior to braking. (Ex. 1001, 6:49-59). In general, the 993 Patent discloses a brake control unit that eliminates the need to manually adjust the level of the accelerometer when the brake control unit 4

9 is initially mounted or changed to a different mounting orientation. (Ex. 1001, 1:50-53). The brake control unit is intended for under dashboard mounting and has a relatively wide mounting range. The optimum-mounting angle is forty-five degrees with a minimum preferred mounting angle of zero degrees and a maximum preferred mounting angle of seventy degrees. (Ex. 1001, 4:14-20). The brake control unit also includes a display for presenting status information, diagnostic information, output voltage, and the connection status of the brake load. (Ex. 1001, Claims 15, 18, and 20). B. Prosecution History Summary of the 993 Patent The 993 Patent was filed on November 22, The 993 Patent issued September 3, 2002, with 39 claims, of which claims 1, 14, and 27 are independent. On October 5, 2001, the Examiner rejected all of the claims in a first Office Action. Specifically, the claims were rejected as being obvious over U.S. 6,012,780 to Duvernay in view of U.S. 6,039,410 to Robertson et al. and/or in view of U.S. 6,282,480 to Morse et al. Duvernay and Robertson et al., both of which teach electronic trailer brake controllers and Morse et al. teaches an electronic brake controller and display. 5

10 The Applicant replied to the first Office Action on November 30, 2001 (hereinafter the first Reply ). In the first Reply, the Applicant argued against the prior art rejections without amending the claims. On January 11, 2002, the Examiner issued a second Office Action rejecting claims 1, 4, 8, 10, 12, 17, 21, 23, 25, 30, 32, 34, 36, 38, and 39 in view of the same prior art noted above, and in view of the Applicant s admitted prior art. The second Office Action indicated that claims 5-7, 9, 11, 18-20, 22, 24, 31, 35, and 37 would be allowed if rewritten in independent form. The Applicant replied to the second Office Action on March 28, 2002 (hereinafter the second Reply ). In the second Reply, the Applicant again argued against the prior art rejections and did not amend any of the claims. Specifically, the Applicant asserted that the prior art to Robertson et al. teaches away from Applicants claimed subject matter in that it requires technician or operator leveling of the brake control unit when the brake control unit is installed in the vehicle and when the orientation of the brake control unit is changed. (Ex. 1002, the second Reply, pg. 3. In response to the second Reply, the Examiner issued a Notice of Allowance on April 16, The Examiner provided the following reasons for allowance: None of the above-cited references either singularly or in combination teach or 6

11 fairly suggest wherein the processor is programmed to cause an appropriate brake output signal to be provided to the brake load responsive to the brake control signal, and a memory subsystem coupled to the processor, the memory subsystem storing processor executable code which causes the processor to automatically acquire an operating point of the brake control signal when the brake control unit is mounted within a range of operating positions. (Ex. 1002, Notice of Allowance, pg. 2-3). C. How the Challenged Claims Are to be Construed under 37 C.F.R (b)(3). A claim subject to inter partes review receives the broadest reasonable construction in light of the specification of the patent in which it appears. 37 C.F.R (b). Petitioner therefore requests that the claim terms be given their broadest reasonable interpretation, as understood by one of ordinary skill in the art and consistent with the disclosure. See Office Patent Trial Practice Guide, 77 Fed. Reg , (Aug. 14, 2012). However, because the district court may apply a different standard, the claim interpretations presented in this petition do not necessarily reflect the claim construction that Petitioners believe should be adopted by the district court in the Litigation or in any other proceeding. Petitioners do not concede that constructions offered in this petition should be adopted by the district court in the Litigation. 7

12 Regarding the term operating point as used in the claims, please note that the 993 Patent defines the operating point as a reference level set by the accelerometer s output just prior to vehicle braking. (Ex. 1001, 6:49-59). Given this definition, the broadest reasonable interpretation of operating point is a value representing accelerometer output just prior to braking. (Ex , 30). See Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322 (Fed. Cir. 2009) ( the specification's use of i.e. signals an intent to define the word to which it refers ). Regarding the phrase mounted within a range of operating positions in claim 1, this phrase requires the unit have multiple positions at which the brake control unit can be mounted and does not cease to operate or does not cease to be operable as a result of its mounted position. (Ex. 1001, 1:50-53, 2:13-16, and Claim 3). (Ex , 30). The phrase status and diagnostic information in the claims refers to information related to the settings and braking parameters of a brake controller; and information related to functional aspects of the controller. In its embodiments, the 993 Patent describes two categories of displays. For example, status information: brake output signal level, output voltage during braking, boost input is 8

13 on; and diagnostic (or warning ): shorted output, current overload, open ground. (Ex. 1001, 4:28-67). (Ex , 30). The phrase brake load in the claims refers to the electromagnetic coil of an electric brake. Specifically, this term is defined within the 993 Patent as follows: The brake control unit provides a brake output signal to a brake load (i.e., brake electromagnets) of a towed vehicle (i.e., a trailer) responsive to the brake control signal. (Ex. 1001, 3:2-6). Moreover, the invention makes use of the inductance of the coils in disclosing a means for detecting whether or not they are connected (Ex. 1001, 9:2-23). (Ex , 30). IV. THE PRIOR ART. A. U.S. Patent No. 5,620,236 to McGrath et al. (Exhibit 1004) is Prior Art under 35 U.S.C. 102(b). U.S. Patent No. 5,620,236 to McGrath et al. ( McGrath ) issued on April 15, (Ex. 1003). Thus, McGrath qualifies as prior art under 35 U.S.C. 102(b). McGrath discloses an electronic brake controller with a deceleration sensor and a microprocessor. (Ex. 1003, Abstract, 5:63-65). The microprocessor is responsive to a brake control signal for generating an output signal for actuating the electric wheel brakes of the towed vehicle. (McGrath, Abstract). McGrath also discloses the use of an accelerometer. McGrath incorporates by reference US Patent 4,726,627 (Ex. 1007), which describes an accelerometer 9

14 based on a pendulum and a Hall-effect sensor to determine the swing angle of the pendulum during a deceleration and/or inclination event. (Ex. 1003, 5:63-67). The brake control generator 52, which incorporates the decelerometer, sends its signal to the microprocessor by way of the A/D converter. Note that the A/D converter is connected directly into an input of the microprocessor (Ex. 1003, Fig. 2). The processor controls the brake current based on the signal from the microprocessor. (Ex. 1003, 2:25-30, 5:46-67). When the controller 11 is installed, the pendulum device 135 may generate a small bias voltage when the pendulum is in the rest position. The microprocessor is programmed with software or computer code that, along with a zero adjust circuit 144, electronically reduces the voltage bias of the pendulum device 135 to zero. The zeroing process is manually initiated by the microprocessor 45 when the vehicle driver holds the gain control push-button 32 in a depressed position for more than five seconds, or is automatically initiated when the microprocessor 45 is energized. (Ex. 1003, 8:28-31, 8:44-47, and 12:57-67). Thus, the zeroing process allows for automatic adjustment to compensate for the brake controller being mounted in a range of operating positions. (Ex , and 58). McGrath also discloses a display and LEDs configured to display the magnitude of the brake application and any gain adjustment made by the user. 10

15 (Ex. 1003, 4:63-67). The brake controller 11 is typically mounted beneath the towing vehicle dashboard. (Ex. 1003, 3:33-35). B. U.S. Patent No. 6,837,551 to Robinson et al. (Exhibit 1004) is Prior Art under 35 U.S.C. 102(e). The 993 Patent application was filed on November 22, 2000 and issued on September 3, U.S. Patent No. 6,837,551 to Robinson et al. ( Robinson ) issued on January 4, 2005 and was filed on April 7, 2003, but is a divisional of U.S. Patent Application No. 09/292,790 filed April 14, Therefore, Robinson is prior art under 35 U.S.C. 102(e), because it claims priority to a patent application filed before the filing date of the 993 Patent. (Ex. 1004). Robinson discloses a towed vehicle brake controller including an accelerometer that reads forces in more than one axis and allows the mounting of the control module without the need for leveling the device. (Ex. 1004, 10:14-30). Robinson also discloses a microprocessor continually polling the accelerometer to determine a baseline acceleration while the towing vehicle is in operation and is not braking. This baseline acceleration is used to determine an accurate braking force. (Ex. 1004, 15:14-35; 16:30-57). The baseline acceleration is an operating point as claimed in the 993 Patent, because the 993 Patent defines the operating point as a reference level set by of the accelerometer s output immediately prior to braking. (Ex. 1001, 6:49-59). 11

16 Robinson discloses mounting the control module in a range within the operator s reach. That is, Robinson discloses mounting the control module at various positions within the reach of the operator in the cab of the vehicle. (Ex. 1004, 6:25-33). Robinson was not cited on the face of the 993 Patent and was not applied by the Examiner in any claim rejections. C. U.S. Patent No. 6,179,390 to Guzorek et al. (Exhibit 1005) is Prior Art under 35 U.S.C. 102(e). U.S. Patent No. 6,179,390 to Guzorek et al. ( Guzorek ) was filed April 24, (Ex. 1005). Thus, Guzorek qualifies as prior art under 35 U.S.C. 102(e). The Guzorek patent discloses, An electronic brake controller for controlling electric brakes of a towed vehicle, such as a trailer. (Ex. 1005, Abstract). The Guzorek invention senses the pressure on the brake pedal how hard the driver s foot is pushing to discern the necessary braking force at the trailer. Guzorek discloses the use of a microcontroller and display in an electronic control system for electric brakes. (Ex. 1005, Abstract). The display 76, illustrated in Guzorek, Figs. 1 and 3A, is illustrated as a dual seven-segment display for alerting the driver to various status and diagnostic information. (Ex. 1005, 3:28-33, 9:3-8). Guzorek further discloses, The control settings (settings of switches SW2, SW3, SW4, SW5) and driver feedback are displayed by two-digit LED display 76 on the 12

17 remote control unit 52 and driven by the microprocessor 51 in usual manner. For example, the LED display 76 can display the output setting, rate setting, trailer connect indication, and non-sensor mode indication of the microprocessor 51 in the event the force sensor 60 becomes disconnected or is not installed. (Ex. 1005, 9:43-51). Guzorek was not cited on the face of the 993 Patent and was not applied by the Examiner in any claim rejections. D. U.S. Patent No. 5,333,948 to Austin et al. (Exhibit 1006) is Prior Art under 35 U.S.C. 102(b). U.S. Patent No. 5,333,948 to Austin et al. ( Austin ) issued on August 2, 1994 and is thus prior art under 35 U.S.C. 102(b). (Ex. 1006). Austin generally discloses a multiple-gain electronic brake actuator with a trigger point inertial sensor. This includes an indicator positioned to visually indicate to the vehicle operator that the towing vehicle is electrically connected to the towed vehicle brake actuator and represent the magnitude of the braking current being applied to the towed vehicle brakes. (Ex. 1006, 4: 63 5:14). Specifically, a green LED provides the towed vehicle operator with an indication that the towed vehicle brake circuit is connected to the brake controller (Ex. 1006, 13:1-5 and 15:23-37). Austin was cited on the face of the 993 Patent, but was not applied by the Examiner in any claim rejections. 13

18 V. THERE IS A REASONABLE LIKELIHOOD THAT AT LEAST ONE CLAIM OF THE 993 PATENT IS UNPATENTABLE UNDER 37 C.F.R (B) As detailed in the claim charts below, all limitations of claims 1, 2, 4, 5, 7, 9, 11, 14, 15, 17, 18, 20, 22, 24, 27, 28, 30, 31, 33, 35, and 37 of the 993 Patent were well known in the prior art. Claims 1, 2, 5, 7, 11, 14, 15, 18, 20, 24, 27, 28, 31, and 37 are each anticipated by McGrath and/or Robinson. Regarding various combinations of prior art, claims 9, 22, 30, 35, and 37 of the 993 Patent are obvious because they merely recite (i) the combination of prior art elements according to known methods to yield predictable results; (ii) use known techniques to improve similar devices, methods, or products in the same way; and (iii) directly contain some teaching, suggestion, or motivation that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. MPEP 2143(A), (C), (G). Claims 1, 14, and 27 Claims 1 and 14 are each anticipated by McGrath (see Ground 1 below) (Ex. 1008, and 68-72), claims 1, 14, and 27 are anticipated by Robinson (see Ground 3 below) (Ex. 1008, , , and ), and claim 27 is furthermore obvious over McGrath in view of Robinson (see Ground 2 below) (Ex. 1008, 92-97). McGrath broadly discloses an electronic trailer brake controller 14

19 including a deceleration sensor and a microcontroller programmed to compensate for voltage bias of the deceleration sensor. Specifically, the microprocessor and a zero adjust circuit cooperatively zero the bias voltage generated while the pendulum device or deceleration sensor is in its rest position. The resulting zero adjust signal provides an operating point from which to determine a corrected brake control signal. The zero adjust signal is generated either automatically when the microprocessor is energized or manually by the operator pressing and holding the gain control push button 32 for more than five seconds. (Ex. 1003, 12:57-67). The controller and its pendulum device s rest position could be at any of a variety of angles, as McGrath merely discloses that the controller may be mounted beneath the towing vehicle dash board, and does not require a specific orientation. (Ex. 1003, 3:33-35). The automatic zeroing out feature allows for a range of installation attitudes of the controller with respect to the horizon of the vehicle. (Ex. 1008, 49-58). Robinson broadly discloses a towed vehicle brake controller with an accelerometer that allows the mounting of the control module without the need for leveling the device. (Ex. 1004, 10:23-25). Therefore, Robinson is designed to solve the same problem disclosed in the 993 Patent. (Ex. 1001, 1:50-53). 15

20 Robinson further discloses a method used for acquiring the operating point using continual polling to cancel out any offset in the accelerometer output. (Ex. 1008, 126). Specifically, Robinson discloses a microprocessor continually polling the accelerometer to determine a baseline acceleration while the towing vehicle is in operation and is not braking. This baseline acceleration is used to determine an accurate braking force. (Ex. 1004, 15:14-35; 16:30-57). The baseline is an operating point of the claims of the 993 Patent, because the 993 Patent defines the operating point as a reference level set by the accelerometer s output immediately prior to braking. (Ex. 1001, 6:49-59). Note that a microprocessor, as disclosed in Robinson, requires memory to function because a microprocessor needs executable code that is stored in memory in order to know what to do. Thus, the memory subsystem storing processor executable code in claims 1, 14, and 27 is inherent to using a microprocessor. (Ex. 1008, 25, 115, 118, 126, 134). Robinson discloses mounting the control module within a range of operating positions. Specifically, Robinson discloses mounting the control module at various positions within the reach of the operator in the cab of the vehicle. (Ex. 1004, 6:25-33). As the accelerometer senses forces in at least two axes of movement of 16

21 the towing vehicle, leveling of the brake controller is not necessary. (Ex. 1004, Col. 6:49-51). Claims 2, 15, and 28 Regarding claims 2 and 15 as shown in Ground 1, McGrath discloses a display (Ex. 1003, Fig. 1, reference numerals 32 and/or 33) in which some of the LED configurations indicate status information (Ex. 1003, 2:39-43; 4:63-67; and 16:42-44), while other LED configurations indicate diagnostic information (Ex. 1003, 16:51-53). (Ex. 1008, 59-61, 73-74). Alternatively, as shown in Ground 3 regarding claims 2, 15, and 28, Robinson discloses the use of a display that indicates brake force and system status. (Ex. 1004, 7:57-61). For example, the number of braking level indicators that are lighted is an indication of braking force. (Ex. 1004, 11:43-44). Furthermore, the display may convey diagnostic information with the status signal. (Ex. 1004, 9:22-25). (Ex. 1008, 120, 128, 136). Claims 4, 17, and 30 As shown in Ground 4 below, regarding claims 4, 17, and 30, using a dual seven-segment display in an in-vehicle system was also well known in the art at the time of the invention. Specifically, it would be obvious to a person skilled in the art at the time of the invention to combine the teachings of Robinson with the 17

22 dual seven-segment display described and illustrated in Guzorek et al., because both references disclose electronic brake controller for towed vehicle brakes, both including displays. Therefore, it would be obvious to substitute one known type of display (the display panel 20 in Robinson) with another (the dual seven-segment display of Guzorek et al, display 76 in Figs. 1 and 3A) as a matter of mere design choice. (Ex. 1008, ). Claims 5, 18, and 31 Claims 5, 18, and 31 are either anticipated by Robinson (see Ground 3) or obvious over McGrath in view of Robinson (see Ground 2). McGrath discloses displaying visual information concerning the brake system to the driver and illuminating LED to display the magnitude of brake application. (Ex. 1003, 16:38-45; 4:63-66). Robinson discloses that if brake magnets are not connected, there will be no status signal sent to a status LED of the controller and the status LED will go out. (Ex. 1004, 16:58-67). Robinson therefore discloses determining whether a brake load is present; and displaying the status of the brake load on the display, as recited in claims 5, 18, and 31. It would have been obvious to combine McGrath and Robinson, since both references relate to electronic brakes for a vehicle towing 18

23 a trailer and have numerous elements in common. (Ex. 1008, 79-81, 85-88, , , 129, 137). Claims 7, 20, and 33 Claims 7, 20, and 33 are obvious over McGrath in view of Robinson, as shown in Ground 2 below. McGrath discloses During towed vehicle brake applications, a combination of the LED s 33 are illuminated to display the magnitude of the brake application. (1003, 4:63-66). McGrath also discloses Upon actuation of the towed vehicle brakes 13 and 14 in either the automatic or manual mode of operation, one to four LED s are illuminated to indicate the duty cycle of the microprocessor output signal, which is representative of the degree of brake application. (Ex. 1003, 16:38-45). Likewise, Robinson discloses Lighted display panel 20 may include brake force light emitting diodes (LEDs) display 22 that show the braking force being applied to the towed vehicles brakes... (Ex. 1003, 7:57-60). Robinson also discloses LED 210 which is a braking level indicator the number of braking level indicators that are lighted is an indication of braking force. (Ex. 1003, 11:40-44) Although McGrath does not explicitly recite displaying output voltage, as in claims 7, 20, and 33, McGrath discloses measuring other voltages (Ex. 1003, 2:51-54). Because both McGrath and Robinson disclose a desire to visually 19

24 indicate braking magnitude, and McGrath discloses measuring and displaying other voltages, it would merely be a matter of obvious design choice to one skilled in the art at the time of the invention to display the output voltage as recited in claims 7, 20, and 33. (Ex. 1008, 82-84, 89-91, ). Claims 9, 22, and 35 As depicted in Ground 1 and Ground 5 below, in regards to claims 9, 22, and/or 35, the concept of mounting inertial sensors at an angle on printed circuit boards (PCB) was well known in the art at the time of the invention, as disclosed in Austin and McGrath. Robinson, McGrath, and Austin are each related to electronic trailer brake controls and it would therefore be obvious to combine these references to provide facility in assembly of the controller by use of the printed circuit board and further by angle mounting the inertial sensor to ensure proper operation of the controller upon mounting of the unit. (Ex. 1006, 6:52-67; Ex. 1001, 4:4-13). (Ex. 1008, ). Furthermore, in regard to claims 9, 22, and 35, a person skilled in the art would know that microprocessors, microcontrollers, and memory chips cannot be used in electronic circuits without first mounting them on printed circuit boards (PCBs). (Ex. 1008, 144, 150, 156). The detector portion of the accelerometer (i.e., decelerometer) in McGrath is the Hall Effect sensor disclosed in US 20

25 4,726,627 to Frait (Ex. 1007), which is incorporated by reference into McGrath (Ex. 1004). In Frait, the printed circuit board 43 can be seen in Figs 2 and 3. The deceleration sensing unit 30 comprises an outer plastic housing 42 which is secured to a circuit board 43 supported within the controller casing 31. (Ex. 1007; 5:32-34). Claims 11, 24, and 37 As also shown in Grounds 1 and 2, claims 11, 24, and 37 are anticipated by McGrath and/or obvious over McGrath in view of Robinson. Note that the 993 Patent describes examples of calibration data, such as information needed to adjust the offset of the brake control signal caused by the accelerometer and/or temperature variations. (Ex. 1001, 3:62-68). McGrath also discloses the use of read-only memory (ROM), which is one form of non-volatile memory, as recited in claims 11, 24, and 37. The ROM contains the program code to be executed, as well as a table of gain values to be used for calibration. (Ex. 1004; 8:57-60). As McGrath explains, the ROM memory stores numerical values in a table; these are part of the calibration process of zeroing out the bias from the accelerometer. (Ex. 1003; 13:1-12). This storing of calibration information requires the same operations as those disclosed in the 993 Patent. (Ex. 1008, 65-67, 78, 111). 21

26 Therefore, claims 11, 24, and 37 are anticipated by McGrath and/or obvious over McGrath in view of Robinson. Under the Supreme Court s flexible and expansive KSR obviousness analysis, which includes recourse to common sense, [w]hen there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. KSR, Int l Co. v. Teleflex, Inc., 550 U.S. 398, (2007). Hopkins and Coast cite herein a variety of prior art references that anticipate or in combination render obvious the claimed brake controller of the 993 Patent. Consequently, there is a reasonable likelihood that at least one claim of the 993 Patent is unpatentable. VI. DETAILED EXPLANATION UNDER 37 C.F.R (B) A. Ground 1: Claims 1, 2, 9, 11, 14, 15, 22, and 24 of U.S. Patent No. 6,445,993 are Unpatentable Under 35 U.S.C. 102(b) as Being Anticipated by U.S. Patent No. 5,620,236 to McGrath et al. (Ex. 1003). 993 patent claims Prior Art Disclosure 1. A brake control McGrath discloses An electronic brake controller for unit for providing a actuating electric wheel brakes of a towed vehicle in response brake output signal to actuation of the brakes of an associated towing vehicle. to a brake load of a The brake controller includes a sensor for producing a brake 22

27 towed vehicle, comprising: a processor; control signal which is representative of the desired braking of the towed vehicle. (McGrath, Abstract). (Ex. 1008, 49-50). McGrath discloses, The controller also includes a microprocessor for responsive to the brake control signal. (Abstract) an accelerometer coupled to the processor, the accelerometer providing a brake control signal to the processor, wherein the processor is programmed to cause an appropriate brake output signal to be provided to the brake load responsive to the brake control signal; (Ex. 1008, 51). (see also McGrath, Fig. 2). McGrath discloses The controller 11 includes a two channel analog to digital (A/D) converter 49 which is electrically coupled to the input pins 46 and 47 of the microprocessor 45. (McGrath, Col. 5, ll ). McGrath also discloses, A brake control signal generator 52 is connected by line 53 to the input of the first channel of the A/D converter 49. 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, a deceleration sensor (not shown) comprising a pendulum which cooperates with a Hall effect device to generate a voltage proportional to the deceleration of the towing vehicle is used. Such a deceleration sensor is described in US Pat. No. 4,726,627, which is hereby incorporated by reference. (McGrath, Col., 5, ll Col. 6, ll. 1). McGrath further discloses The brake controller 11 utilizes a preprogrammed eight bit microprocessor 45which can receive two digitized brake control signals representing desired braking levels In response to the brake control signals, the microprocessor 45 generates an output signal at an output pin 48. (McGrath, Col. 5, ll ). McGrath also discloses, The present invention relates to an improved electronic brake controller for actuating electric wheel brakes of a towed vehicle in response to actuation of 23

28 a memory subsystem coupled to the processor, the memory subsystem storing processor executable code which causes the processor to automatically acquire an operating point of the brake control signal when the brake control unit is mounted within a range of operating positions. 2. The brake control unit of claim 1, further including a display for providing status and diagnostic information. the brakes of an associated towing vehicle which includes a microprocessor for controlling the flow of electric current to the electrically actuated wheel brakes. (McGrath, Col. 2, ll ). (Ex. 1008, 52-54). McGrath discloses, As indicated above, the brake controller 11 includes a microprocessor 45. The microprocessor 45 is an eight bit integrated circuit which includes a memory (McGrath, Col. 8, ll ) McGrath also discloses, In the preferred embodiment, the microprocessor 45 is programmed during fabrication by loading specific software into the microprocessor memory. (McGrath, Col. 8, ll ) McGrath further discloses, Typically, when the controller 11 is installed, the pendulum device 135 may generate a small bias voltage when the pendulum is in the rest position. This bias voltage is electronically reduced to zero by the microprocessor 45 and the zero adjust circuit 144. The zeroing process is manually initiated by the microprocessor 45 when the vehicle driver holds the gain control push-button 32 in a depressed position for more than five seconds. Once the process is initiated, the push-button 32 can be released. Alternately, the zeroing process is automatically initiated when the microprocessor 45 is energized. (McGrath, Col. 12, ll ). McGrath also discloses, The brake controller 11 is typically located in a towing vehicle (not shown), usually being mounted beneath the towing vehicle dashboard. (McGrath, Col. 3, ll ). (Ex. 1008, 55-58). McGrath discloses, The controller further includes an operator actuated means for selecting one of the plurality of gain settings and a display means for indicating to the operator the selected gain setting. (McGrath, Col. 2, ll ). McGrath also discloses, During towed vehicle brake 24

29 applications, a combination of the LED s 33 are illuminated to display the magnitude of the brake application. The LED s are also illuminated when the gain is adjusted. (McGrath, Col. 4, ll ). In the preferred embodiment, combinations of the four LED's 33 are illuminated to display eight gain levels. As indicated above, the LED's 33 will flash to signal completion of the process of zeroing the deceleration sensor 135. (McGrath, Col. 16, ll ). 9. The brake control unit of claim 1, wherein the processor, memory subsystem and accelerometer are mounted on a printed circuit board (PCB), and wherein the accelerometer is mounted at an angle with respect to the PCB. (Ex. 1008, 59-61). (see also McGrath, Fig. 2). McGrath discloses In the preferred embodiment, a deceleration sensor (not shown) comprising a pendulum which cooperates with a Hall effect device to generate a voltage proportional to the deceleration of the towing vehicle is used. Such a deceleration sensor is described in US Pat. No. 4,726,627, which is hereby incorporated by reference. (McGrath, Col., 5, ll Col. 6, ll. 1). Frait, U.S. Pat. No. 4,726,627 (Ex. 1007) discloses The deceleration sensing unit 30 comprises an outer plastic housing 42 which is secured to a circuit board 43 supported within the controller casing 31. (Ex. 1007, Col. 5, ll ). See also Ex. 1007, Figs. 2 and 3 below. 25

30 11. The brake control unit of claim 1, wherein the memory subsystem includes a nonvolatile memory for storing calibration data for the McGrath discloses all the limitations of claim 1 (see above). McGrath also discloses, Alternately, a read only memory (ROM) which is preprogrammed with the operating instructions and table of gain values can be included in the microprocessor 45. (McGrath, Col. 8, ll ). (Ex. 1008, 65-67, 78, 111). 26

31 accelerometer. 14. A method for providing a brake output signal to a brake load of a towed vehicle, comprising the steps of: providing a processor; providing an accelerometer coupled to the processor, the accelerometer providing a brake control signal to the processor, wherein the processor is programmed to cause an appropriate brake output signal to be provided to the brake load in response to the brake control signal; and McGrath discloses An electronic brake controller for actuating electric wheel brakes of a towed vehicle in response to actuation of the brakes of an associated towing vehicle. The brake controller includes a sensor for producing a brake control signal which is representative of the desired braking of the towed vehicle. (McGrath, Abstract). (Ex. 1008, 68). McGrath discloses, The controller also includes a microprocessor for responsive to the brake control signal. (Abstract) (Ex. 1008, 69). (see also McGrath, Fig. 2). McGrath discloses The controller 11 includes a two channel analog to digital (A/D) converter 49 which is electrically coupled to the input pins 46 and 47 of the microprocessor 45. (McGrath, Col. 5, ll ). McGrath further discloses The brake controller 11 utilizes a preprogrammed eight bit microprocessor 45which can receive two digitized brake control signals representing desired braking levels In response to the brake control signals, the microprocessor 45 generates an output signal at an output pin 48. (McGrath, Col. 5, ll ). McGrath further discloses, A brake control signal generator 52 is connected by line 53 to the input of the first channel of the A/D converter 49. 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, a deceleration sensor (not shown) comprising a pendulum which cooperates with a Hall effect device to generate a voltage proportional to the deceleration of the towing vehicle is used. Such a deceleration sensor is described in US Pat. No. 4,726,627, which is hereby incorporated by reference. (McGrath, Col., 5, ll Col. 6, 27

32 ll. 1). providing a memory subsystem coupled to the processor, the memory subsystem storing processor executable code which causes the processor to automatically acquire an operating point of the brake control signal when the brake control unit is mounted within a range of operating positions. 15. The method of claim 14, further McGrath also discloses, The present invention relates to an improved electronic brake controller for actuating electric wheel brakes of a towed vehicle in response to actuation of the brakes of an associated towing vehicle which includes a microprocessor for controlling the flow of electric current to the electrically actuated wheel brakes. (McGrath, Col. 2, ll ). (Ex. 1008, 70-71). McGrath discloses, As indicated above, the brake controller 11 includes a microprocessor 45. The microprocessor 45 is an eight bit integrated circuit which includes a memory (McGrath, Col. 8, ll ) McGrath also discloses, In the preferred embodiment, the microprocessor 45 is programmed during fabrication by loading specific software into the microprocessor memory. (McGrath, Col. 8, ll ) McGrath further discloses, Typically, when the controller 11 is installed, the pendulum device 135 may generate a small bias voltage when the pendulum is in the rest position. This bias voltage is electronically reduced to zero by the microprocessor 45 and the zero adjust circuit 144. The zeroing process is manually initiated by the microprocessor 45 when the vehicle driver holds the gain control push-button 32 in a depressed position for more than five seconds. Once the process is initiated, the push-button 32 can be released. Alternately, the zeroing process is automatically initiated when the microprocessor 45 is energized. (McGrath, Col. 12, ll ). McGrath also discloses, The brake controller 11 is typically located in a towing vehicle (not shown), usually being mounted beneath the towing vehicle dashboard. (McGrath, Col. 3, ll ). (Ex. 1008, 72). McGrath discloses all the limitations of claim 14 (see immediately above). 28

33 including: providing a display for presenting status and diagnostic information. McGrath discloses, The controller further includes an operator actuated means for selecting one of the plurality of gain settings and a display means for indicating to the operator the selected gain setting. (McGrath, Col. 2, ll ). McGrath also discloses, During towed vehicle brake applications, a combination of the LED s 33 are illuminated to display the magnitude of the brake application. The LED s are also illuminated when the gain is adjusted. (McGrath, Col. 4, ll ). In the preferred embodiment, combinations of the four LED's 33 are illuminated to display eight gain levels. As indicated above, the LED's 33 will flash to signal completion of the process of zeroing the deceleration sensor 135. (McGrath, Col. 16, ll ). 22. The method of claim 14, wherein the processor, memory subsystem and accelerometer are mounted on a printed circuit board (PCB), and wherein the accelerometer is mounted at an angle with respect to the PCB. (Ex. 1008, 73-74). (see also McGrath, Fig. 2). McGrath discloses In the preferred embodiment, a deceleration sensor (not shown) comprising a pendulum which cooperates with a Hall effect device to generate a voltage proportional to the deceleration of the towing vehicle is used. Such a deceleration sensor is described in US Pat. No. 4,726,627, which is hereby incorporated by reference. (McGrath, Col., 5, ll Col. 6, ll. 1). Frait, U.S. Pat. No. 4,726,627 (Ex. 1007) discloses The deceleration sensing unit 30 comprises an outer plastic housing 42 which is secured to a circuit board 43 supported within the controller casing 31. (Ex. 1007, Col. 5, ll ). See also Ex. 1007, Figs. 2 and 3 below. 29

34 24. The brake control unit of claim 14, wherein the memory subsystem includes a nonvolatile memory for McGrath discloses all the limitations of claim 14 (see above). McGrath also discloses, Alternately, a read only memory (ROM) which is preprogrammed with the operating instructions and table of gain values can be included in the microprocessor 45. (McGrath, Col. 8, ll ). (Ex. 1008, 30

35 storing calibration data for the accelerometer , 78, 111). B. Ground 2: Claims 5, 7, 18, 20, 27, 28, 31, 33, 35, and 37 of U.S. Patent No. 6,445,993 Patent are Invalid Under 35 U.S.C. 103(a) as Being Obvious over U.S. Patent No. 5,620,236 to McGrath et al. (Ex. 1003) in view of U.S. Patent No. 6,837,551 to Robinson et al. (Ex. 1004). 993 patent claims Prior Art Disclosure 5. The brake control unit of claim 2, wherein brake control display code causes the processor to perform the steps of: determining whether the brake load is present; and displaying the status of the brake load on the display. McGrath and Robinson each disclose all the limitations of claim 2 (see Grounds 1 and 3). McGrath discloses, The microprocessor 45 is programmed to illuminate particular combinations of the LED s 33 to provide visual information concerning the brake system 10 to the vehicle driver, Upon actuation of the towed vehicle brakes 13 and 14 one to four LED s are illuminated to indicate the duty cycle of the microprocessor output signal, which is representative of the degree of brake application." (McGrath, Col. 16, ll ). (See also McGrath, Fig. 2). McGrath further discloses, During towed vehicle brake application, a combination of the LED s 33 are illuminated to display the magnitude of the brake application. (McGrath, Col. 4, ll ). 7. The brake control unit of claim 5, Robinson discloses power module 50 and power module 92 produce and send a status signal to control module 10. if the brake magnets are not connected, there will be no status signal sent to the status LED 24 of the controller. if the trailer is disconnected from the driving vehicle, there will be no signal and the status LED 24 will go out. (Robinson, Col. 16, ll ). (see also Robinson, Figs. 1, 2; Col. 7, ll ; Col. 11, ll ). (Ex. 1008, 79-81). McGrath and Robinson discloses all the limitations of claim 5 (see immediately above). 31

36 wherein the brake control display code causes the processor to perform the additional steps of: determining an output voltage of the brake control unit; and displaying the output voltage on the display. 18. The method of claim 15, wherein brake control display code causes the processor to perform the steps of: determining whether a brake load is present; and displaying the status of the brake load on the display. McGrath also discloses, The controller also includes a microprocessor for responsive to the brake control signal. (Abstract) The microprocessor 45 is programmed to illuminate particular combinations of the LED s 33 to provide visual information concerning the brake system 10 to the vehicle driver, Upon actuation of the towed vehicle brakes 13 and 14 in either the automatic or manual mode of operation, one to four LED s are illuminated to indicate the duty cycle of the microprocessor output signal, which is representative of the degree of brake application." (McGrath, Col. 16, ll ). (See also McGrath, Fig. 2). McGrath further discloses, During towed vehicle brake application, a combination of the LED s 33 are illuminated to display the magnitude of the brake application. (McGrath, Col. 4, ll ). Robinson discloses Lighted display panel 20 may include brake force light emitting diodes (LEDs) display 22 that show the braking force being applied to the towed vehicles brakes... (Robinson, Col. 7, ll ). Robinson also discloses LED 210 which is a braking level indicator the number of braking level indicators that are lighted is an indication of braking force. (Robinson, Col. 11, ll ). (Ex. 1008, 82-84, 89-91, ). McGrath and Robinson each disclose all the limitations of claim 15 (see Grounds 1 and 3). McGrath discloses, The microprocessor 45 is programmed to illuminate particular combinations of the LED s 33 to provide visual information concerning the brake system 10 to the vehicle driver, Upon actuation of the towed vehicle brakes 13 and 14 one to four LED s are illuminated to indicate the duty cycle of the microprocessor output signal, which is representative of the degree of brake application." (McGrath, Col. 16, ll ). (See also McGrath, Fig. 2). McGrath further discloses, During towed vehicle brake application, a combination of the LED s 33 are illuminated to display the 32

37 20. The method of claim 18, wherein the brake control display code causes the processor to perform the additional steps of: determining an output voltage of the brake control unit; and displaying the output voltage on the display. magnitude of the brake application. (McGrath, Col. 4, ll ). Robinson discloses power module 50 and power module 92 produce and send a status signal to control module 10. if the brake magnets are not connected, there will be no status signal sent to the status LED 24 of the controller. if the trailer is disconnected from the driving vehicle, there will be no signal and the status LED 24 will go out. (Robinson, Col. 16, ll ). (see also Robinson, Figs. 1, 2; Col. 7, ll ; Col. 11, ll ). (Ex. 1008, 85-88). McGrath and Robinson discloses all the limitations of claim 5 (see immediately above). McGrath also discloses, The controller also includes a microprocessor for responsive to the brake control signal. (Abstract) The microprocessor 45 is programmed to illuminate particular combinations of the LED s 33 to provide visual information concerning the brake system 10 to the vehicle driver, Upon actuation of the towed vehicle brakes 13 and 14 in either the automatic or manual mode of operation, one to four LED s are illuminated to indicate the duty cycle of the microprocessor output signal, which is representative of the degree of brake application." (McGrath, Col. 16, ll ). (See also McGrath, Fig. 2). McGrath further discloses, During towed vehicle brake application, a combination of the LED s 33 are illuminated to display the magnitude of the brake application. (McGrath, Col. 4, ll ). Robinson discloses Lighted display panel 20 may include brake force light emitting diodes (LEDs) display 22 that show the braking force being applied to the towed vehicles brakes... (Robinson, Col. 7, ll ). Robinson also discloses LED 210 which is a braking level indicator the number of braking level indicators that are lighted is an indication of braking force. (Robinson, Col. 11, ll ). (Ex. 1008, 82-84, 89-91, ). 27. A brake control McGrath discloses An electronic brake controller for 33

38 unit for providing a brake output signal to a brake load of a towed vehicle, comprising: a processor; a brake load switching circuit coupled to the processor, wherein the processor is programmed to cause the brake load switching circuit to couple a towed vehicle battery to the brake load responsive to a brake control signal and thus provide a brake output signal to the brake load; actuating electric wheel brakes of a towed vehicle in response to actuation of the brakes of an associated towing vehicle. The brake controller includes a sensor for producing a brake control signal which is representative of the desired braking of the towed vehicle. (McGrath, Abstract). (Ex. 1008, 92). McGrath discloses, The controller also includes a microprocessor for responsive to the brake control signal. (Abstract) (Ex. 1008, 93). (see also McGrath, Fig. 2). McGrath discloses The controller 11 further includes a brake driver 59 having an input connected by line 60 to the microprocessor output pin 48. The brake driver 59 amplifies the microprocessor output signal. The brake driver 59 has an output connected by line 61 to a brake switching circuit. The brake switching circuit 62 includes a plurality of P-channel MOSFET s which function as electronic switches. The MOSFET s are connected between the towing vehicle power supply 23 and the towed vehicle brake electromagnets 19. (McGrath, Col. 6, ll ). Robinson discloses, In the preferred embodiment of the invention, the control module is mounted in a location convenient to the driver of a towing vehicle, such as on the gear shift lever or on the dashboard of the towing vehicle. In this manner control of a towed vehicle's brakes can be maintained comfortably by the driver with his eyes on the road and at least one hand on the steering wheel while having the other the other hand available for shifting gears or manipulating the controls of the brake control module. With the control module so mounted, the power module may be connected anywhere in or on the towing vehicle or in or on the towed vehicle, such that it can derive the power needed to 34

39 apply brakes from the power source of the towing or towed vehicle. As the power module takes power from the towed vehicle, communication between the control module and the power module may be made using relatively light gauge wire. (Robinson, Col. 6:24-40). an accelerometer coupled to the processor, the accelerometer providing a brake control signal to the processor; Robinson discloses, power module 92 produces a status signal which it returns to control module 10 and status LED 24 through control line Power module 92 further comprises power input 106 which is connected to the trailer battery via line 108 through circuit breaker 104. (Robinson, Col. 9, ll ). Robinson further discloses Power module 92 comprises several power outputs Brake power output 114 is connected, via line to the brake magnets of the trailer through line 116. When the microprocessor receives a braking signal from control module 10, it sends a signal to brake power output 114 which operates the brake magnets of the trailer. (Robinson, Col. 9, ll ). (see also Robinson, Figs. 1 and 2). (Ex. 1008, 94-95). McGrath discloses The controller 11 includes a two channel analog to digital (A/D) converter 49 which is electrically coupled to the input pins 46 and 47 of the microprocessor 45. (McGrath, Col. 5, ll ). McGrath further discloses, A brake control signal generator 52 is connected by line 53 to the input of the first channel of the A/D converter 49. 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, a deceleration sensor (not shown) comprising a pendulum which cooperates with a Hall effect device to generate a voltage proportional to the deceleration of the towing vehicle is used. Such a deceleration sensor is described in US Pat. No. 4,726,627, which is hereby 35

40 incorporated by reference. (McGrath, Col., 5, ll Col. 6, ll. 1). a memory subsystem coupled to the processor, the memory subsystem storing processor executable code which causes the processor to automatically acquire an operating point of the brake control signal when the brake control unit is mounted within a range of operating positions. McGrath also discloses, The present invention relates to an improved electronic brake controller for actuating electric wheel brakes of a towed vehicle in response to actuation of the brakes of an associated towing vehicle which includes a microprocessor for controlling the flow of electric current to the electrically actuated wheel brakes. (McGrath, Col. 2, ll ). (Ex. 1008, 96). McGrath discloses, As indicated above, the brake controller 11 includes a microprocessor 45. The microprocessor 45 is an eight bit integrated circuit which includes a memory (McGrath, Col. 8, ll ) McGrath also discloses, In the preferred embodiment, the microprocessor 45 is programmed during fabrication by loading specific software into the microprocessor memory. (McGrath, Col. 8, ll ) McGrath further discloses, Typically, when the controller 11 is installed, the pendulum device 135 may generate a small bias voltage when the pendulum is in the rest position. This bias voltage is electronically reduced to zero by the microprocessor 45 and the zero adjust circuit 144. The zeroing process is manually initiated by the microprocessor 45 when the vehicle driver holds the gain control push-button 32 in a depressed position for more than five seconds. Once the process is initiated, the push-button 32 can be released. Alternately, the zeroing process is automatically initiated when the microprocessor 45 is energized. (McGrath, Col. 12, ll ). McGrath also discloses, The brake controller 11 is typically located in a towing vehicle (not shown), usually being mounted beneath the towing vehicle dashboard. (McGrath, Col. 3, ll ). (Ex. 1008, 97). 36

41 28. The brake control unit of claim 27, further including a display for providing status and diagnostic information. McGrath and Robinson disclose all the limitations of claim 27 (see immediately above). McGrath discloses, The controller further includes an operator actuated means for selecting one of the plurality of gain settings and a display means for indicating to the operator the selected gain setting. (McGrath, Col. 2, ll ). McGrath also discloses, During towed vehicle brake applications, a combination of the LED s 33 are illuminated to display the magnitude of the brake application. The LED s are also illuminated when the gain is adjusted. (McGrath, Col. 4, ll ) In the preferred embodiment, combinations of the four LED's 33 are illuminated to display eight gain levels. As indicated above, the LED's 33 will flash to signal completion of the process of zeroing the deceleration sensor 135. (McGrath, Col. 16, ll ). 31. The brake control unit of claim 28, wherein brake control display code causes the processor to perform the steps of: determining whether the brake load is present; and displaying the status of the brake load on the display. (Ex. 1008, 135,136). (see also McGrath, Fig. 2). McGrath and Robinson each disclose all the limitations of claim 28 (see immediately above). McGrath discloses, The microprocessor 45 is programmed to illuminate particular combinations of the LED s 33 to provide visual information concerning the brake system 10 to the vehicle driver, Upon actuation of the towed vehicle brakes 13 and 14 one to four LED s are illuminated to indicate the duty cycle of the microprocessor output signal, which is representative of the degree of brake application." (McGrath, Col. 16, ll ). (See also McGrath, Fig. 2). McGrath further discloses, During towed vehicle brake application, a combination of the LED s 33 are illuminated to display the magnitude of the brake application. (McGrath, Col. 4, ll ). Robinson discloses power module 50 and power module 37

42 33. The brake control unit of claim 31, wherein the brake control display code causes the processor to perform the additional steps of: determining an output voltage of the brake control unit; and displaying the output voltage on the display. 35. The brake control unit of claim 27, wherein the processor, memory subsystem and 92 produce and send a status signal to control module 10. if the brake magnets are not connected, there will be no status signal sent to the status LED 24 of the controller. if the trailer is disconnected from the driving vehicle, there will be no signal and the status LED 24 will go out. (Robinson, Col. 16, ll ). (see also Robinson, Figs. 1, 2; Col. 7, ll ; Col. 11, ll ). (Ex. 1008, ). McGrath and Robinson disclose all the limitations of claim 31 (see immediately above). McGrath also discloses, The controller also includes a microprocessor for responsive to the brake control signal. (Abstract) The microprocessor 45 is programmed to illuminate particular combinations of the LED s 33 to provide visual information concerning the brake system 10 to the vehicle driver, Upon actuation of the towed vehicle brakes 13 and 14 in either the automatic or manual mode of operation, one to four LED s are illuminated to indicate the duty cycle of the microprocessor output signal, which is representative of the degree of brake application." (McGrath, Col. 16, ll ). (See also McGrath, Fig. 2). McGrath further discloses, During towed vehicle brake application, a combination of the LED s 33 are illuminated to display the magnitude of the brake application. (McGrath, Col. 4, ll ). Robinson discloses Lighted display panel 20 may include brake force light emitting diodes (LEDs) display 22 that show the braking force being applied to the towed vehicles brakes... (Robinson, Col. 7, ll ). Robinson also discloses LED 210 which is a braking level indicator the number of braking level indicators that are lighted is an indication of braking force. (Robinson, Col. 11, ll ). (Ex. 1008, 82-84, 89-91, ). McGrath and Robinson disclose all of the limitations of claim 27 (see above). McGrath discloses In the preferred embodiment, a deceleration sensor (not shown) comprising a pendulum 38

43 accelerometer are mounted on a printed circuit board (PCB), and wherein the accelerometer is mounted at an angle with respect to the PCB. which cooperates with a Hall effect device to generate a voltage proportional to the deceleration of the towing vehicle is used. Such a deceleration sensor is described in US Pat. No. 4,726,627, which is hereby incorporated by reference. (McGrath, Col., 5, ll Col. 6, ll. 1). Frait, U.S. Pat. No. 4,726,627 (Ex. 1007) discloses The deceleration sensing unit 30 comprises an outer plastic housing 42 which is secured to a circuit board 43 supported within the controller casing 31. (Ex. 1007, Col. 5, ll ). See also Ex. 1007, Figs. 2 and 3 below. 39

44 37. The brake control unit of claim 27, wherein the memory subsystem includes a nonvolatile memory for storing calibration data for the accelerometer. McGrath discloses all the limitations of claim 27 (see above). McGrath also discloses, Alternately, a read only memory (ROM) which is preprogrammed with the operating instructions and table of gain values can be included in the microprocessor 45. (McGrath, Col. 8, ll ). (Ex. 1008, 65-67, 78, 111). C. Ground 3: Claims 1, 2, 5, 14, 15, 18, 27, 28, and 31 of U.S. Patent No. 6,445,993 are Unpatentable Under 35 U.S.C. 102(e) as Being Anticipated by U.S. Patent No. 6,837,551 to Robinson et al. (Ex. 1004). 993 patent claims Prior Art Disclosure 1. A brake control unit for providing a brake output signal to a brake load of a towed vehicle, Robinson discloses A brake controller, for controlling the brakes of a towed vehicle (Robinson, Abstract). Robinson further discloses microprocessor 264 causes power module 50 to secure appropriate power, from the battery of the towed vehicle, so that an appropriate signal, 40