Monday, February 3, 2020
Two PTAB decisions recently designated as informative show that failure to provide detailed evidence of motivation to combine references for an obviousness challenge, can sink a Petition before or after institution of trial. In Johns Manville Corp. v. Knauf Insulation, Inc. (IPR2018-00827, Paper 9), the PTAB denied institution of an IPR for lack of reasons to substitute compositions in one reference with those of another. In Hulu, LLC v. Sound View Innovations, LLC (IPR2018-00582, Paper 34), the PTAB reached a final decision that the claims of a telecommunications patent were not obvious where Petitioner’s motivation to combine rationale was undermined by contrary evidence. These decisions illustrate the demanding level of proof required of Petitioners to articulate the why and the how a person of ordinary skill in the art (POSA) would combine or modify the teachings of the references to arrive at the claimed invention.
In the first case, Johns Manville petitioned for review of numerous claims of Knauf’s U.S. Patent No. 9,828,287 (“the ’287 patent”), asserting unpatentability for obviousness based on several combinations of four prior art references. The ’287 patent is directed to “a thermal or acoustical fiberglass insulation material [that comprises] a collection of glass fibers and . . . binder[s] with various characteristics.” A key feature of the binders is that they included a reaction product between “a reducing sugar reactant and an amine reactant.” Johns Manville, Paper 9 at 3-4. Patent Owner, Knauf, successfully argued that Petitioner “picks and chooses binder components without explanation,” and did not provide a valid rationale for combining references. Id. at 9.
In agreeing that the proposed obviousness grounds failed to adequately show a motivation to combine or modify the references, the Board focused primarily on Petitioner’s first ground based on the Srinivasan and Worthington references.1 The PTAB described Srinivasan as disclosing an aqueous binder composition for making glass fiber products, such as fiberglass insulation. Id. at 6. Its binder is not the same as the claimed product of a reducing sugar and amine. Petitioner relied on Worthington for teaching the claimed binder which is disclosed as useful for “the making of shell molds or cores and for other purposes.” Id. at 7. Petitioner argued that a POSA would have substituted Worthington’s binder for Srinivasan’s because Worthington is analogous art and both references disclose thermosetting binder compositions with overlapping constituents. Id. at 10. Relying on Securus Techs.2 and Personal Web Techs.,3the PTAB held that neither “mere compatibility of the references” nor a showing “that the prior art references [were] analogous art or in the same field of endeavor as the challenged patent” were sufficient “to establish that the skilled artisan would have had reason to combine the teachings of the prior art as claimed in the challenged patent.” Id.
The Board found Petitioner’s other alleged motivations to combine similarly defective. Worthington’s statement that its thermosetting compositions may be used for “other purposes for which thermosetting compositions are used” was found insufficient to support Petitioner’s assertion that the challenged claims represent the predictable use of prior art elements according to their established functions. Id. at 11. Noting that the “cited references teach considerably different binding systems,” the Board faulted Petitioner for failing to explain a specific reason to substitute Worthington’s binder for Srinivasan’s other than the unsupported assumption that all thermoset binders are useful in the Srinivasan’s type of fiberglass insulation product. Id. More generally, the Board wanted to see evidence concerning “which of the prior art elements allegedly has a known function, what that function is, and why that function is allegedly predictable. Id. at 12. As a corollary, the Board found that in view of the extensive modifications proposed, Petitioner also failed to adequately support existence of a reasonable expectation of success in making the modifications. Id. at 13.
The PTAB’s ruling in Hulu, LLC v. Sound View Innovations, LLC shows that even where an IPR trial is instituted, detailed consideration of the facts may ultimately demonstrate a lack of motivation to combine. In Hulu, Petitioner challenged claims of US Patent No. 6,502,133, which relate to an apparatus and method for processing real-time events in, e.g., a telecommunications system. The ’133 patent discloses that conventional database management systems are often too slow to meet real-time performance requirements relating to “switching services” in telecommunication systems. The ’133 Patent at 1:25-42. At the time of the invention, custom databases were effective, but expensive and inflexible solutions to such problems. Id. at 1:43-56. The ’133 patent claims include a real-time analysis engine associated with a main-memory database where recovery information is stored. The Board instituted trial on two grounds of obviousness, but noted that one ground was flawed from the start.4 Here, we focus on the second ground, the combination of O’Neil, Kao and De Witt, which was the primary basis for institution. Hulu, Paper 9 at 2.
O’Neil discloses a telecommunications system for providing prepaid and credit limited cell phone service and includes a real-time telephone call monitoring, rating, and response system. This system includes at least two databases, but does not disclose whether those are in main memory. Petitioner therefore relied on Kao for teaching that in real-time database systems, main memory databases provide fast and predictable access times. Id. at 14. Kao also noted that telephone switching is an application with “stringent timing requirements” for which a real-time database would be useful. Petitioner contended that a POSA would have been motivated “‘to use Kao’s main-memory database in O’Neil’s real-time telephone call monitoring system . . . because (i) it was known that telephone routing and billing systems required tight timing requirements, and (ii) it was known that main memory databases are particularly suitable for these types of systems.’” Id. De Witt, which is cited by Kao, was relied on for details concerning storing recovering information on memory. Id.
Patent Owner, Sound View Innovations, was able to rebut this specific and seemingly credible motivation to combine, by adducing evidence that undermined the alleged “stringent timing requirements” of O’Neil’s databases. First, Patent Owner pointed to evidence that O’Neil’s system obtains information from its databases during a call within a few seconds rather than milliseconds. Petitioner’s expert was then forced to admit that “once a second” updates from O’Neil’s databases were acceptable in O’Neil’s telecommunications system. Id. at 16-17. Second, Patent Owner’s expert provided uncontested testimony that the “vast majority of database systems” at the time of the ’133 patent were disk-based systems and that these were fast enough to meet O’Neil’s requirements. Id. at 17-18. Third, Patent Owner also put forth evidence that using a main memory database for O’Neil’s databases would not have had any impact on O’Neil’s call routing speeds because call routing was complete before the system requires information from the databases. Id. at 18. Finally, the Board also found that main memory disadvantages of high cost, low capacity and volatility would have weighed against a POSA combining O’Neil and Kao/De Witt.5Id. at 19-20.
In summary, the Johns Manville and Hulu decisions provide a cautionary tale to Petitioners to thoroughly vet the motivation to combine evidence and arguments supporting an obviousness challenge in an IPR Petition. These decisions are also a cogent reminder to Patent Owners that even if all elements of the claims are met by combined references, a detailed attack on the factual bases for the alleged motivation to combine is a worthwhile strategy to defeat an obviousness challenge.
1 One or both of Srinivasan and Worthington appear in the other three proposed obviousness grounds and the Board found that those grounds failed for similar reasons as ground 1. Id. at 14.
2 Securus Techs., Inc. v. Global Tel*Link Corp., 701 F. App’x 971, 977 (Fed. Cir. 2017).
3 Personal Web Techs., LLC v. Apple, Inc., 848 F.3d 987, 993 (Fed. Cir. 2017).
4 In the Institution Decision and in the Final Written Decision, the Board indicated that the first ground of obviousness failed to teach or suggest at least one of the claimed elements.
5 Other motivation arguments raised by Petitioner in its Reply were deemed either unsupported or untimely. Id. at 21
ST. PETERSBURG, FL, USA – The Women’s Tennis Association has announced two new trials that will take place over the 2020 season as the organization continues to demonstrate its commitment to innovating the sport.
Electronic line calling will be tested on the clay court surface for the first time at the Volvo Car Open in Charleston, South Carolina, utilizing FOXTENN technology.
The FOXTENN system, which was officially approved for hardcourt use by the WTA in 2018, will debut on clay at Charleston’s Billie Jean King Stadium Court and the Althea Gibson Club Court in April.
The same challenge protocols will be used as those on hard and grass courts, that of three challenges per set and no ball mark inspections.
Following the introduction of on-court coaching in 2008 and the use of WTA-authorized tablets in 2015 (with SAP), coaching from the stands will begin a trial allowing for coaching from the player box at the Dubai Duty Free Tennis Championships and the Hungarian Ladies Open in Debrecen, Hungary.
The coaching trial will continue through the season at all WTA Premier and International events.
As coaching is currently not allowed from the player box and is difficult to regulate, the trial will allow coaches to coach and provide input to their player through verbal encouragements, hand signals or quick coaching tips consistent with the manner they currently engage with a player, from the box and now without penalty.
Any type of coaching conversation must take place through the WTA’s existing on-court coaching protocol, whereby a player can request their coach to come to their bench once a set.
“The WTA has always embraced the opportunity to introduce new technology and innovations to enhance women’s tennis, and we’re excited to see where these trials take the sport,” said WTA Chairman and CEO Steve Simon.
“We’re hopeful these provisional changes will have a positive impact in improving the overall playing environment and upgrading the way fans can enjoy the WTA Tour.”
Coaching from the stands will be allowed on the WTA Tour this season.
The trial will begin at the Dubai Duty Free Championships and Hungarian Open in February and will continue at all WTA Premier and International events in 2020.
“The new trial will allow coaches to coach their player in the form they are currently coaching from the box without getting penalized,” the WTA told ESPN.com.
“Whether it’s verbal words of encouragement or [a] few words when their player is on the same side of the court to any hand signals, such coaching as it takes place now from the box will be allowed.”
The WTA said it is making the change because the existing rules are “difficult to regulate” and because it is happening widely across the sport, but it emphasized that the new rule will not mean any more coaching during matches than is already happening.
In October 2018, one month after the US Open incident, Mouratoglou said he thought coaching from the stands should be allowed because everyone is already doing it and it would “help the popularity of the sport.”
Darren Cahill, Simona Halep‘s coach, said the move was long overdue.
“I’m for it,” he said. “I’m big on tradition. I’m old. So I love the whole tradition of tennis and the one-on-one and problem-solving and what you’re trying to do. But I think we’re evolving as a sport.
“Grand Slams, put that aside. We have the four Grand Slams — that’s fine. But for the ATP and the WTA, we need to evolve. And I think bringing coaching into those events is important. I think they can go further and do it more. I think as an industry, a coaching industry in tennis, it’s important that we do evolve and do this. I’m really for it. I think the WTA is doing a good thing.”
Halep joked that she hopes Cahill does not use the new rule to be quite as vocal as he sometimes is in her direction, but she said she would have an open mind.
“Well, I thought a little bit about it when I heard it today,” Halep said. “I don’t know what to say. It’s going to be interesting. I didn’t have this experience. Maybe in juniors, but also, we had rules that we cannot talk with the coaches. But let’s wait and see. I’m open to it.”
Former world No. 1 Mats Wilander, commentating at the Australian Open for Eurosport, said the move makes sense because “it’s kind of happening anyway.”
“We saw the case with Serena and Patrick Mouratoglou, which put the issue at the forefront. For me, it’s fine to have [coaching] from the sideline, as long as it doesn’t become too loud and verbal across the whole court, but it’s not as the other player hears it.
“What with the different languages spoken, the only problem is that you can’t control it from the sidelines. To me, it’s a great call by the WTA.”
Cahill thinks the new rule might produce some unexpected results.
“Even today, you know, if I was allowed to coach today, you’d be surprised how little coaching the coaches will do if they’re allowed to do it,” he said.
“The reason why probably a lot of it goes on at the moment is because you’re not allowed to do it, so you’re trying to get the sneaky coaching message across. But if you were allowed to do it, it’s a simple one line: ‘Hey, Simona, hold your line.’ OK, that’s coaching. But it’s not over-the-top coaching.”
On-court coaching, which was introduced by the WTA Tour in 2008 and allows players to call their coaches on court for a conversation once per set, will remain in place, the WTA confirmed.
Coaching is not allowed at Grand Slam events, though the US Open allows a more open form of coaching from the stands in its qualifying events.
If you want to achieve your goals, you need motivation. You need the desire to achieve, and the passion to work hard to get what you want.
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If you want to achieve your goals, you need motivation. You need the desire to achieve, and the passion to work hard to get what you want.
There’s a lot of information around on motivation these days. You can hear about it all the time from motivational speakers, motivational books, and motivational videos.
But what is motivation, really? And what do you do when it goes away before you’ve achieved your goal?
This is the question on everyone’s mind. How do you stay motivated over the long term? Well, I’m going to give you some help with that.
The definition of motivation, as described by the Oxford Dictionary is “a reason or reasons for acting, or behaving in a particular way.” Simply put, it’s why you do the things that you do. It’s why you get up and brush your teeth in the morning, why you take a jog instead of sitting around on the couch all day.
And it’s the reason why you’re reading an article written by a motivational speaker, instead of watching television or playing on the internet. But being motivated to do something in the short-term will not help you to stay motivated over the time it takes to achieve some of your more ambitious goals.
Motivation in and of itself isn’t actually a good thing, it’s actually neutral. You might be motivated by your sweet tooth to get that one-million-calorie candy bar. And what’s one of the first things police look for after a homicide? That’s right, it’s the motivation of the killer.
So, what is it that turns motivation into something either good or bad, constructive or destructive? It’s what you choose to do with the motivation, what you achieve. And what’s more, there are a number of ways you can increase your own motivation. This can include dietary changes and mindset changes. This means that you have lots of options to help you stay motivated.
The two types of motivation
According to psychologists, there are two main types of motivation: extrinsic and intrinsic.
Extrinsic motivation refers to an outside factor that influences an individual’s desire to perform a task. This can be the need for money, family pressure, societal pressure, and so on. Anything outside yourself that pushes you towards doing something is considered to be extrinsic motivation. Extrinsic motivation can be a good way to motivate yourself to perform short-term, boring tasks. But if you use it in the long term, it can actually decrease your motivation levels.
Intrinsic motivation is much more personal. This desire comes from a deep-rooted part of an individual, and is less changeable than an external factor. Your intrinsic motivation can come from your belief system, the values you grew up with, or an event from your past. They are not easily altered by external stimuli. For these reasons, internal motivation is considered the most powerful when it comes to getting things done. It is also one of the most useful tools you have in your fight to stay motivated.
When you start something new, you’re usually enthusiastic and hopeful about it. This gives you the motivation to do well, and the push to move forward even when it’s difficult. However, after a few weeks, this can start to fade. The work starts to drag, things aren’t moving as fast as you want them to, and you may start to resent the work. Basically, you want to quit because you aren’t seeing the results you imagined.
But here’s the thing: beyond that brick wall is what you’re fighting for. Often, when things seem the hardest, you’re almost there! So, don’t stop, or you’ll end up regretting it.
You won’t always feel motivated- so get disciplined
Unless you’ve got an amazingly fiery inner drive, you won’t always be able to stay motivated. It’s just the way things are. Motivation is a short-term emotion that will naturally fade with time. And it doesn’t really matter if you get the results you want, or if you actually enjoy the activity you’re adding to your life. If you rely on your emotions to make you do it every day, your emotions will also get in the way.
In contrast, self-discipline is “the ability to control one’s feelings, and overcome one’s weaknesses.” When you’re disciplined, you do things even when you don’t really want to. It’s a part of your brain that you can train to do what’s best for you and your goals. When you have discipline, you control yourself enough that your emotions and whims don’t always negatively affect your behavior. This sounds like a boring way to live, but studies actually show that people with self-discipline are generally happier than those without. The subjects were usually happier because they had a set of clear guidelines for decision making, which reduced general stress levels.
To increase your self-discipline, you can begin with the following simple steps.
1. Make a schedule Making a schedule will help you organize your thoughts about what you need to do, and will also help you see when your free time is.
2. Find someone to hold you accountable Accountability can mean a friend, a family member, another student, or a teacher. It doesn’t matter as long as it’s someone who’ll keep you on the path you’ve chosen. It’s your way of giving yourself some external motivation to keep you motivated while you build up your discipline.
3. Follow your schedule The third step should be self-explanatory. You have to follow your schedule, that’s why you wrote it.
As I said before, discipline is more important in the long run than motivation. However, motivation will help you get started, and make the process easier. So, let’s also talk about some ways you can increase your motivation when it’s nowhere to be found.
1. Get some exercise While a lot of people need motivation to make them exercise, it can actually increase your motivation as well. If you get regular exercise, you’ll find that your mood and mental clarity will skyrocket. You’ll also feel more willing and able to do just about anything!
2. Meditate Meditation is great for getting in touch with your intrinsic motivation, because it helps silence all of the mental chatter and external stimuli for a little while. It also gives your brain a break, reduces symptoms of stress, and makes you more aware of your body and its needs.
3. Listen to music Music is scientifically proven to improve workouts and motivate athletes. But it’s not just for the weightlifters and marathon runners, it’s for everyone. When you need to sit down and focus, put on music that helps you think. For most people, this could be instrumental with few to no lyrics, but the type of music is different for everyone. Find your playlist, turn it on, and go!
4. Eat well Ever eat a heavy, junky meal, then feel like the only thing you want in life is to lay down on the sofa, and never get up? That’s because eating heavy, nasty foods saps your strength, and upsets your body. It’s not the sort of thing you want to eat on days when you need to be productive. Try eating light, healthy snacks and meals throughout the day to keep your body nourished. You’ll feel better, clearer, and more motivated.
5. Get enough rest You’re not going to want to do anything if you’re exhausted. Exhaustion is a growing problem in these modern times, and it’s disastrous for your determination to stay motivated. Try to get to bed at a decent time, and get at least 7-9 hours of sleep a night. If you have trouble getting over six hours, consider taking 20-minute power naps when you feel your energy dip during the day.
The number one thing you can take away from this
Motivation can be a slippery and difficult beast to tame. But you’re not helpless against its whims. If you’re really determined to stay motivated, you need to incorporate discipline and motivation-fostering practices into your life. Think of one area of your life in which you need more motivation, and implement one of the ideas above to make some real changes. This is the best way to help you achieve your goals, and it will improve the quality of your life as well. And even more importantly, don’t give up on yourself. You can do it, and you’re worth it.