`Tel: 571-272-7822
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`Paper 8
`Entered: October 6, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PLAID TECHNOLOGIES, INC.,
`Petitioner,
`
`v.
`
`YODLEE, INC.,
`Patent Owner.
`
`Case CBM2016-00082
`Patent 7,424,520 B2
`
`Before MICHAEL W. KIM, MICHAEL R. ZECHER, and
`CHRISTOPHER M. KAISER, Administrative Patent Judges.
`
`Opinion for the Board filed by Administrative Patent Judge KAISER.
`
`Dissenting Opinion filed by Administrative Patent Judge KIM.
`
`DECISION
`Denying Institution of Covered Business Method Patent Review
`35 U.S.C. § 324(a) and 37 C.F.R. § 42.208
`
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`CBM2016-00082
`Patent 7,424,520 B2
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`A. Background
`
`INTRODUCTION
`
`This is a preliminary proceeding to decide whether, under section 18
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`of the Leahy-Smith America Invents Act, Pub. L. No. 112–29, 125 Stat. 284,
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`331 (2011) (“AIA”), a covered business method patent review of U.S. Patent
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`No. 7,424,520 B2 (Ex. 1001, “the ’520 patent”) should be instituted under
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`35 U.S.C. § 324(a).1 Plaid Technologies, Inc. (“Petitioner”) filed a Petition
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`(Paper 3, “Pet.”) requesting a covered business method patent review of
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`claims 1–40 of the ’520 patent. Yodlee, Inc. (“Patent Owner”) filed a
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`Preliminary Response. Paper 7 (“Prelim. Resp.”). A covered business
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`method patent review may not be instituted “unless . . . the information
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`presented in the petition . . ., if such information is not rebutted, would
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`demonstrate that it is more likely than not that at least 1 of the claims
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`challenged in the petition is unpatentable.” 35 U.S.C. § 324(a); see 37
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`C.F.R. § 42.208.
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`For reasons that follow, we determine that Petitioner has not
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`established that the challenged patent qualifies as a covered business method
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`patent. Accordingly, we do not institute a covered business method patent
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`review of any of the challenged claims.
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`B. Related Matters
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`The parties identify a related piece of litigation, Yodlee, Inc. v. Plaid
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`Technologies, Inc., No. 14-cv-01445 (D. Del.). Pet. 3; Paper 6, 1. Petitioner
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`1 GTNX, Inc. v. INTTRA, Inc., 789 F.3d 1309, 1310 (Fed. Cir. 2015)
`(describing transitional program for review of covered business method
`patents under 35 U.S.C. §§ 321–329, pursuant to the AIA, as subject to “the
`standards and procedures of[] a post-grant review under . . . 35 U.S.C.
`§§ 321–329,” absent exceptions not applicable here).
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`2
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`CBM2016-00082
`Patent 7,424,520 B2
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`also challenges the claims of U.S. Patent No. 7,263,548, which is related to
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`the ’520 patent, in Case CBM2016-00070.
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`C. The Asserted Grounds of Unpatentability
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`Petitioner contends that claims 1–40 of the ’520 patent are
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`unpatentable for lack of patent-eligible subject matter under 35 U.S.C.
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`§ 101. Pet. 24–54. Petitioner’s arguments rely on a Declaration from Dr.
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`Todd Mowry. Ex. 1002 (“the Mowry Declaration” or “Mowry Decl.”).
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`In addition, Petitioner argues that claims 21, 37, and 38 are
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`unpatentable under 35 U.S.C. § 103 as obvious over both the combination of
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`MaxMiles2 and Bull3 and the combination of VerticalOne4 and Bull. Pet.
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`55–87.
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`D. The ’520 Patent
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`The ’520 patent relates to “[a] system for retrieving and disseminating
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`information records from Internet sources.” Ex. 1001, at [57]. It “pertains
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`more particularly to restructuring of personal data and, in some cases,
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`general data for the purpose of enabling receipt of such data by a variety of
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`connected and portable network appliances without requiring added
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`hardware or software.” Id. at 1:25–29. The ’520 patent notes that many
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`2 MileageMiner, Take your Miles to the Max with MaxMiles
`MileageMinerTM (Jan. 28, 1999, 6:22:11 PM), http://web.archive.org/web/
`19990128182211/http://www.maxmiles.com/MileageMiner/
`AboutMileMiner.html (Ex. 1006, “MaxMiles”).
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`3 Bull et al., U.S. Patent No. 5,901,287, issued May 4, 1999 (Ex. 1005,
`“Bull”).
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`4 VERTICALONE CORPORATION TO OFFER INTERNET USERS ONE-STOP FOR
`MANAGING ONLINE PERSONAL CONTENT AND ACCOUNT INFORMATION
`(Business Wire Inc., May 25, 1999) (Ex. 1007, “VerticalOne”).
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`3
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`CBM2016-00082
`Patent 7,424,520 B2
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`“electronic communication devices,” such as “cellular telephones, personal
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`digital assistants (PDA’s), pagers, and notebook and laptop computers,”
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`have difficulty maintaining a continuous, reliable connection to the internet.
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`Id. at 1:41–65. An existing solution to the problem of transmitting data over
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`such unreliable connections was to modify the receiving devices with
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`“software and/or hardware” to allow the viewing of data that had been
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`formatted in a way that could be displayed on the modified devices. Id. at
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`2:41–51. The ’520 patent describes this solution as having the disadvantage
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`of not necessarily working with “independent device[s]” that had not been
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`modified specially. Id. at 2:52–56. Accordingly, the ’520 patent notes the
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`ongoing need for “a method and apparatus for intelligent restructuring of . . .
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`data from the Internet into model/device-specific data formats such that it
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`may be easily made available for transmission to . . . communication
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`devices.” Id. at 3:4–9. The ’520 patent purportedly satisfies this need by
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`describing software that intelligently restructures data obtained from servers
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`on the internet “for delivery to a specific Internet appliance that may not be
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`normally adapted for receiving and displaying the data.” Id. at 6:57–64.
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`E. Illustrative Claims
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`Of the challenged claims in the ’520 patent, claims 1 and 21 are
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`independent and illustrative. They recite:
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`4
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`CBM2016-00082
`Patent 7,424,520 B2
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`1. A system for retrieving and disseminating information,
`comprising:
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`a server including software executing from a digital medium
`and coupled to the Internet network; and
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`a digital appliance operated by a person, coupled to the server
`by a network link and executing an application other than an
`Internet browser application;
`
`wherein the server collects a record associated uniquely with
`the person from an Internet source in a first form in which the
`record is recorded at the Internet source, transforms the record
`from the first form to a second form specific to the application
`executing in the digital appliance, and transmits the transformed
`record to the digital appliance for display.
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`Ex. 1001, 14:47–61.
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`21. A method for retrieving and disseminating information records
`on behalf of a specific client from Internet sources, comprising
`steps of:
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`(a) collecting a record associated uniquely with the client in a
`first data form from an Internet source by a server connected to
`the Internet;
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`(b) transforming the record into a second data form specific to
`an application other than an Internet browser application, the
`application executable by a digital appliance operated by the
`client connectable to the server; and
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`(c) transmitting the transformed record to the digital appliance
`for display.
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`Id. at 16:9–20.
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`A. Claim Construction
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`ANALYSIS
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`In a covered business method patent review, we construe claim terms
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`in an unexpired patent according to their broadest reasonable construction in
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`light of the specification of the patent in which they appear. 37 C.F.R.
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`5
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`CBM2016-00082
`Patent 7,424,520 B2
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`§ 42.200(b); see Cuozzo Speed Techs. LLC v. Lee, 136 S. Ct. 2131, 2144–46
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`(2016) (upholding the use of the broadest reasonable interpretation
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`standard). Claim terms generally are given their ordinary and customary
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`meaning, as would be understood by one of ordinary skill in the art in the
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`context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249,
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`1257 (Fed. Cir. 2007). An inventor, however, may define specific terms
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`used to describe an invention, but must do so “with reasonable clarity,
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`deliberateness, and precision” and must “‘set out his uncommon definition in
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`some manner within the patent disclosure’ so as to give one of ordinary skill
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`in the art notice of the change” in meaning. In re Paulsen, 30 F.3d 1475,
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`1480 (Fed. Cir. 1994) (quoting Intellicall, Inc. v. Phonometrics, Inc., 952
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`F.2d 1384, 1387–88 (Fed. Cir. 1992)). Petitioner proposes that two terms be
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`construed, but Petitioner does not propose constructions for either of these
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`terms, merely reporting instead the constructions adopted in the related
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`District Court litigation. Pet. 23–24. Patent Owner does not respond to this
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`portion of the Petition or propose any of its own claim constructions. See
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`generally Prelim. Resp. 1–21. We conclude that no term needs to be
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`construed expressly in order for us to decide whether to institute trial. See
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`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir.
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`1999) (only terms in controversy need to be construed, and only to the extent
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`necessary to resolve the controversy).
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`B. Covered Business Method Patent
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`Section 18 of the AIA provides for the creation of a transitional
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`program for reviewing covered business method patents. A “[c]overed
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`business method patent” is a patent that “claims a method or corresponding
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`apparatus for performing data processing or other operations used in the
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`6
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`Patent 7,424,520 B2
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`practice, administration, or management of a financial product or service,
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`except that the term does not include patents for technological inventions.”
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`AIA § 18(d)(1); see 37 C.F.R. § 42.301(a). For purposes of determining
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`whether a patent is eligible for a covered business method patent review, the
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`focus is on the claims. Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331,
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`1340 (Fed. Cir. 2016) (stating that Ҥ 18(d)(1) directs us to examine the
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`claims when deciding whether a patent is a [covered business method]
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`patent”).
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`1. Effect of Statutory Disclaimer
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`Petitioner identifies six claims that it contends satisfy the financial-
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`product-or-service requirement on the basis of their claim language. Pet.
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`14–15. Specifically, Petitioner identifies claims 14 and 34, both of which
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`recite the limitation “billing schedules retrieved for a client are converted
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`into two or more records”; claims 15 and 35, both of which recite the
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`limitation “generat[ing] an alarm prior to the time the bill is due, to remind
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`the client that the bill is due”; and claims 8 and 28, both of which recite
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`limitations related to subscription services. Id.; Ex. 1001, 15:15–20, 15:46–
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`53, 16:42–47; 17:6–13. Patent Owner argues, however, that these claims
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`cannot provide the basis for eligibility for covered business method patent
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`review (“CBM eligibility”), because each of these claims has been
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`disclaimed pursuant to 35 U.S.C. § 253(a) and 37 C.F.R. § 1.321(a). Prelim.
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`Resp. 6–7; Ex. 2001, 1.
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`The disclaimer of a claim “shall . . . be considered as part of the
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`original patent.” 35 U.S.C. § 253(a). The language “considered as part of
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`the original patent” means that a patent subject to a disclaimer under
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`§ 253(a) “is treated as though the disclaimed claims never existed.” Vectra
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`7
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`CBM2016-00082
`Patent 7,424,520 B2
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`Fitness, Inc. v. TNWK Corp., 162 F.3d 1379, 1383 (Fed. Cir. 1998) (citing
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`Altoona Publix Theatres v. American Tri-Ergon Corp., 294 U.S. 477, 492
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`(1935); Guinn v. Kopf, 96 F.3d 1419, 1422 (Fed. Cir. 1996)). Accordingly,
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`even though claims 8, 14, 15, 28, 34, and 35 of the ’520 patent existed at the
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`time the Petition here was filed, we must now treat the ’520 patent as if it
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`had never included those claims. Under this legal rubric, claims 8, 14, 15,
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`28, 34, and 35 cannot provide the basis for the ’520 patent’s CBM
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`eligibility. Although previous non-precedential decisions of the Board are
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`not binding on us, we note that this result has been reached by several other
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`panels confronted with the issue of CBM eligibility on the basis of
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`disclaimed claims. See, e.g., CoreLogic, Inc. v. Boundary Solutions, Inc.,
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`Case CBM2016-00016, slip op. at 6–7 (Paper 9) (“[T]he disclaimed claims
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`should not be consulted when determining whether the patent is a covered
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`business method patent.”); AT&T Mobility LLC v. Intellectual Ventures II
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`LLC, Case CBM2015-00185, slip op. at 10 (PTAB May 4, 2016) (Paper 10)
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`(“[W]e will not consider the now-statutorily disclaimed claims in our
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`determination.”); Great West Casualty Co. v. Intellectual Ventures II LLC,
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`Case CBM2015-00171, slip op. at 7 (PTAB Feb. 9, 2016) (Paper 10) (“[F]or
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`the purposes of whether or not to institute a covered business method patent
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`review, we treat [the disclaimed claims] as never having existed.”); Google
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`Inc. v. SimpleAir, Inc., Case CBM2015-00019, slip op. at 14–15 (PTAB
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`May 19, 2015) (Paper 11) (“[W]e treat the [challenged] patent as though [the
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`disclaimed claim] never existed.”).
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`Some panels of the Board have held that a disclaimed dependent
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`claim that includes finance-related subject matter may be considered for
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`purposes of CBM eligibility to the extent that a remaining claim from which
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`8
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`Patent 7,424,520 B2
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`the disclaimed claim depends must include limitations that encompass the
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`finance-related subject matter of the disclaimed claim. See, e.g., American
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`Express Co. v. Maxim Integrated Prods., Inc., Case CBM2015-00098, slip
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`op. at 8–13 (PTAB Sept. 22, 2015) (Paper 17) (finding CBM eligibility
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`where Petition used subsequently disclaimed claim as an example of
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`financial uses of invention recited in remaining claims); J.P. Morgan Chase
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`& Co. v. Intellectual Ventures II LLC, Case CBM2014-00157, slip op. at 2–
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`3 (PTAB Feb. 18, 2015) (Paper 11) (“[S]tanding for covered business
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`method patent review remains at least because disclaimer of claim 12 does
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`not change the scope of independent claim 1, from which it depends.”).
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`Under this theory, although claims 8, 14, and 15 have been disclaimed, the
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`broader claims from which they depend, claims 1 and 10, must be broad
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`enough in scope to encompass their subject matter. Thus, because claims 8,
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`14, and 15 included finance-related subject matter, claims 1 and 10 must
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`also encompass finance-related subject matter. We understand the logic of
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`this position, but we do not agree that it means that claims 1 and 10 can
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`provide CBM eligibility.5
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`First, Petitioner does not argue that claim 1 or claim 10 contains
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`finance-related scope by virtue of the existence of any finance-related claim
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`that depends from those claims. Pet. 13–18. Second, it is not enough that a
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`claim of general applicability, such as claim 1 or claim 10, has some scope
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`that may be described as finance-related. Rather, to find CBM eligibility,
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`we have been directed to “focus[] on the claim language at issue” and to
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`determine whether there is anything “explicitly or inherently financial in the
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`5 The same is true for claims 21 and 30, from which disclaimed claims 28,
`34, and 35 depend.
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`9
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`construed claim language.” Blue Calypso, 815 F.3d at 1340. Therefore, to
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`provide CBM eligibility, a claim must be limited, explicitly or inherently, to
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`“a method or corresponding apparatus for performing data processing or
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`other operations used in the practice, administration, or management of a
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`financial product or service.” AIA § 18(d)(1). The fact that a broad claim
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`encompasses finance-related activity does not necessarily mean that the
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`claim as a whole is limited to that finance-related activity. Accordingly, we
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`do not rely on claims 8, 14, 15, 28, 34, or 35, nor do we rely on the
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`dependence of those claims from any remaining claims, in deciding whether
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`or not to institute trial.
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`2. Claims Remaining After the Statutory Disclaimer
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`“‘[F]inancial product or service’ should be interpreted broadly.”
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`Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1323–26 (Fed. Cir.
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`2015). “[B]roadly” in this context, however, does not mean without limits.
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`As the Federal Circuit explained, “[t]he plain text of the statutory definition
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`contained in § 18(d)(1)—‘performing . . . operations used in the practice,
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`administration, or management of a financial product or service’—on its
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`face covers a wide range of finance-related activities.” Id. at 1325
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`(emphasis added).
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`With respect to the claims of the ’520 patent left after Patent Owner’s
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`statutory disclaimer, Petitioner argues that “the predominant purpose of the
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`claimed invention,” as demonstrated both by the Specification of the ’520
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`patent and by the assertions of the Patent Owner in the related District Court
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`litigation, “is to be used in financial products and services.” Pet. 15–18. As
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`noted above, we must determine whether the scope of the claims of the ’520
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`patent is limited to finance-related activities. Blue Calypso, 815 F.3d at
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`10
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`1340. In addition, several non-binding Board decisions have determined
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`that a patent is not CBM eligible when it has only claims of general utility
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`with no explicit or inherent finance-related terminology or limitations. See,
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`e.g., Qualtrics, LLC v. OpinionLab, Inc., Case CBM2015-00164, slip op. at
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`5–6 (PTAB Feb. 3, 2016) (Paper 8) (“Qualtrics”) (determining that a claim
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`that “solicit[s] feedback from website visitors across a variety of sectors” is
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`of general utility and, therefore, is not directed to a covered business method
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`patent eligible for review); ServiceNow, Inc. v. Hewlett-Packard Co., Case
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`CBM2015-00077, slip op. at 5–7 (PTAB Sept. 17, 2015) (Paper 12)
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`(determining that a claim reciting “a system for managing a Web service” is
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`of general utility and, therefore, is not directed to a covered business method
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`patent eligible for review); ServiceNow, Inc. v. BMC Software, Inc., Case
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`CBM2015-00107, slip op. at 10–15 (PTAB Sept. 11, 2015) (Paper 12)
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`(determining that a claim that performs “fault analysis” is of general utility
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`and, therefore, is not directed to a covered business method patent eligible
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`for review).
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`Thus, claims of general utility are not converted into finance-related
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`claims merely because the Specification of the challenged patent or the
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`litigation positions of the Patent Owner suggest that the scope of the claims
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`is broad enough to encompass some finance-related activities. See
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`Qualtrics, slip op. at 5–6. Here, other than the disclaimed claims discussed
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`above, Petitioner has not alleged that any claim of the ’520 patent is
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`anything other than a claim of general utility, so the mere fact that the
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`Specification contains some discussion of financial activities or that Patent
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`Owner has alleged in litigation that the patent covers financial activities is of
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`little moment.
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`11
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`Of course, if the Specification were to make clear that the claims
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`should be interpreted as limited to finance-related contexts, the presence of
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`general-utility claim language would not preclude a finding of CBM
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`eligibility, but Petitioner has not established that such is the case here. First,
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`Petitioner argues only that “practically every concrete embodiment disclosed
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`in the patent relates to financial transactions,” not that every embodiment
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`does so or that the Specification contains some disclaimer of non-financial
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`activities. Pet. 15. Second, although Petitioner is correct that the
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`Specification of the ’520 patent describes several finance-related
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`embodiments, the Specification also describes the use of the claimed
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`invention in activities, such as e-mail retrieval, that need not be finance-
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`related. Prelim. Resp. 9 (citing Ex. 1001, 7:25–27). Accordingly, we are
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`not persuaded that the language of the remaining claims of the ’520 patent
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`has any particular connection to finance-related activities, because these
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`claims are of general utility with no explicit or inherent finance-related
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`terminology or limitations.
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`3. Conclusion
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`In view of the foregoing, we conclude that Petitioner has not
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`established that the ’520 patent is a covered business method patent under
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`AIA § 18(d)(1).
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`CONCLUSION
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`Upon consideration of the Petition, the Preliminary Response, and the
`
`evidence presently before us, we determine that Petitioner has not
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`demonstrated that the ’520 patent is eligible for review under the transitional
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`covered business method patent review program.
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`12
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`It is hereby
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`ORDER
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`ORDERED that the Petition is denied, and no covered business
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`method patent review is instituted.
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`CBM2016-00082
`Patent 7,424,520 B2
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PLAID TECHNOLOGIES, INC.,
`Petitioner,
`
`v.
`
`YODLEE, INC.,
`Patent Owner.
`
`Case CBM2016-00082
`Patent 7,424,520 B2
`
`
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`KIM, Administrative Patent Judge, DISSENTING
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`My esteemed colleagues have identified the appropriate facts and law
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`relevant to this issue, with the general characterizations of which I concur.
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`Ultimately, my only disagreement comes down to the manner in which those
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`facts and law have been weighed with respect to the finance prong of the test
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`for determining CBM eligibility, of which, most fundamentally, I am
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`persuaded by the logic set forth in American Express Co. v. Maxim
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`Integrated Prods., Inc., Case CBM2015-00098, slip op. at 8–13 (PTAB
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`Sept. 22, 2015) (Paper 17).
`
`Additionally, even disclaimed claims are part of the Specification, in
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`that they are still words written in the ’548 patent that provide informational
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`notice to the public, regardless of whether or not they are legally disclaimed.
`
`Cf. In re Koller, 613 F.2d 819, 823 (CCPA 1980) (original claims constitute
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`their own description) (citing In re Gardner, 475 F.2d 1389, 1391 (CCPA
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`14
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`1973)). And the disclaimed claims expressly describe themselves as further
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`limiting the subject matter of the remaining claims from which they depend.
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`Accordingly, when this part of the Specification is weighed in conjunction
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`with the portions of the Specification identified by Petitioner, I would
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`determine that those remaining claims “encompass patents claiming
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`activities that are financial in nature, incidental to a financial activity or
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`complementary to a financial activity.” 77 Fed. Reg. 48,734, 48,735 (Aug.
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`14, 2012). Compare Great West Casualty Co. v. Intellectual Ventures II
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`LLC, Case CBM2015-00171, slip op. at 7–9 (PTAB Feb. 9, 2016) (Paper
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`10) (reaching opposite conclusion where independent claim, from which
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`claims reciting financial terms depended ultimately, was also disclaimed).
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`To determine otherwise encourages the exact sort of procedural
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`gamesmanship that our reviewing court has disfavored in other contexts.
`
`See Gilead Sciences, Inc. v. Natco Pharma Ltd., (Fed. Cir. 2014) (“[I]f we
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`were to hold that issuance date is the determining factor for double patenting
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`inquiries for post-URAA patents, the terms of such patents could be subject
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`to significant gamesmanship during prosecution.”). Indeed, Patent Owner
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`alleges in the related district court proceeding that Petitioner’s “software and
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`services [that] provide account aggregation and personal financial
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`management services to its customers” infringe the ʼ520 patent claims, a
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`factor that should also be weighed against Patent Owner in the aggregate.
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`Ex. 1008 ¶¶ 21, 68. Cf. Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239
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`F.3d 1343, 1351 (Fed. Cir. 2001) (“A patent may not, like a ‘nose of wax,’
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`be twisted one way to avoid anticipation and another to find infringement.”
`
`(quoting Sterner Lighting, Inc. v. Allied Elec. Supply, Inc., 431 F.2d 539,
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`544 (5th Cir. 1970)).
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`15
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`For the above reasons, I would determine that the ’548 patent does
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`meet the finance prong of the test for determining CBM eligibility.
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`
`PETITIONER:
`
`David L. Cavanaugh
`Kelly Zeng
`WILMER CUTLER PICKERING HALE & DORR LLP
`david.cavanaugh@wilmerhale.com
`Kelly.Zeng@wilmerhale.com
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`Brian Buroker
`GIBSON, DUNN & CRUTCHER LLP
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`David M. Hoffman
`FISH & RICHARDSON P.C.
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