Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper 44
`Entered: July 24, 2015
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC., TWITTER, INC., AND YELP INC.,
`Petitioner,
`
`v.
`
`EVOLUTIONARY INTELLIGENCE, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00086
`Case IPR2014-00812
`Patent 7,010,536 B1
`____________
`
`
`Before KALYAN K. DESHPANDE, BRIAN J. McNAMARA, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`ANDERSON, Administrative Patent Judge.
`
`
`
`DECISION
`Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`571-272-7822
`
`
`
`
`Paper 44
`Entered: July 24, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC., TWITTER, INC., AND YELP INC.,
`Petitioner,
`
`v.
`
`EVOLUTIONARY INTELLIGENCE, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00086
`Case IPR2014-00812
`Patent 7,010,536 B1
`____________
`
`
`Before KALYAN K. DESHPANDE, BRIAN J. McNAMARA, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`ANDERSON, Administrative Patent Judge.
`
`
`
`DECISION
`Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`Case IPR2014-00086
`Case IPR2014-00812
`Patent 7,010,536 B1
`
`
`INTRODUCTION
`
`On October 22, 2013, Apple, Inc. (“Petitioner”)1 filed a Petition
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`requesting inter partes review of claims 2–14 and 16 of U.S. Patent
`
`No. 7,010,536 (Ex. 1001, “the ’536 patent”). Paper 1 (“Pet.”). On
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`April 25, 2014, we granted the Petition and instituted trial for claims 2–12,
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`14, and 16 of the ’536 patent on all of the grounds of unpatentability alleged
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`in the Petition. Paper 8 (“Decision on Institution” or “Dec. Inst.”).
`
`Evolutionary Intelligence, LLC (“Patent Owner”) filed a Patent Owner
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`Response. Paper 20 (“PO Resp.”). Petitioner filed a Reply. Paper 28 (“Pet.
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`Reply”).
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`An oral hearing was held on January 6, 2015. The transcript of the
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`consolidated hearing has been entered into the record. Paper 41 (“Tr.”). In
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`our Final Written Decision entered April 16, 2015 (Paper 41, “Final
`
`Decision” or “Final Dec.”), we determined that Petitioner had not shown by
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`a preponderance of the evidence that claims 2–12, 14, and 16 of the
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`’536 patent were unpatentable as anticipated under 35 U.S.C. § 102(e) by
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`Gibbs (Ex. 1006). Final Dec. 29.
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`Petitioner requests rehearing of our Final Decision (Paper 43,
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`“Request” or “Req. Reh’g”). Petitioner asserts three grounds for rehearing.
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`The first ground is that we misapprehended the evidence regarding whether
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`Gibbs discloses the claimed container. Req. Reh’g. 2–10. Second, it is
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`alleged we erred as a matter of law in our construction of “a first register
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`1 Twitter, Inc. and Yelp Inc. filed a Petition in case IPR2014-00812 against
`the same patent, which case was joined with this case. Decision Granting
`Motion for Joinder (Paper 16). Twitter, Inc. and Yelp Inc. are also
`collectively referred to as “Petitioner” in this case.
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`
`2
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`Case IPR2014-00086
`Case IPR2014-00812
`Patent 7,010,536 B1
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`having a unique container identification value.” Id. at 10–13. Last,
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`Petitioner contends we misapprehended the evidence whether Gibbs’
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`discloses a neutral space register. Id. at 14–15.
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`For at least the reasons that follow, Petitioner’s Request for Rehearing
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`is denied.
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`ANALYSIS
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`A. Standard Applied
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`Petitioner bears the burden of showing the decision should be
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`modified. 37 C.F.R. § 42.71(d). Further, Petitioner “must specifically
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`identify all matters the party believes the Board misapprehended or
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`overlooked, and the place where each matter was previously addressed in a
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`motion, opposition, or a reply.” Id.
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`B. Gibbs Discloses a “container” as Claimed
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`The Final Decision made the determination that Gibbs does disclose a
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`“container” but did not disclose the container “as claimed.” Final Dec. 19.
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`Petitioner makes two arguments that Gibbs discloses the claimed container.
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`1. Gibbs Logical Data Structure is a “container”
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`First, Petitioner argues we misapprehended Gibbs, which Petitioner
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`alleges discloses a single, logically defined enclosure comprising the
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`instantiated transport, map, and report objects. Req. Reh’g. 2–8. As
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`Petitioner argued in its Petition, in the Final Decision we determined that the
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`separate objects of Gibbs were containers. Final Dec. 17, 19. However, we
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`did not find Gibbs discloses the container as claimed where “container” is
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`defined further as including the specified registers, which registers interact
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`with each other. Id. at 19–20. We concluded:
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`Thus, while Gibbs may disclose some objects that function like
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`3
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`Case IPR2014-00086
`Case IPR2014-00812
`Patent 7,010,536 B1
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`the claimed registers, Gibbs does not disclose the claimed
`container. Rather, the “attributes or data items disclosed by
`Gibbs are each described as belonging to particular objects, not
`as generically belonging to every object in Gibbs’[s] system.”
`PO Resp. 26.
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`Final Dec. 23–24 (emphasis added). Petitioner’s final position is that
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`Gibbs is a system that discloses an architecture and objects which
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`anticipate the claims. See Final Dec. 18–19 (citing Pet. Reply 1, 3).
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`However, Petitioner did not establish that all of the objects of the
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`Gibbs system interact with a every other object, i.e., belong with
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`every other object.
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`We have reviewed the evidence relied on by Petitioner in its
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`Request, specifically the Houh Declaration (Ex. 1003) and Hough
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`Supplemental Declaration (Ex. 1009). We referenced both
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`declarations throughout the Final Decision. See Final Dec. 11, 15, 18,
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`19, 20, 22, 23, 24, 25, and 26. We credited the testimony of Patent
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`Owner’s expert, Dr. Green, that the transport object library of Gibbs is
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`distinct from the service object library. Final Dec. 23 (citing Ex. 2006
`
`¶¶ 86–94; see Ex. 1006, Fig. 4). We specifically agreed with Dr.
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`Green’s conclusion that:
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`Gibbs thus discloses the objects in Figure 4 as falling into two
`genuses: transport objects and service objects. Gibbs discloses
`each of these genuses as a library (i.e., “transport object library
`64” and service object library 66”) that consists of specific
`types of objects.
`
`Id. (citing Ex. 2006 ¶ 88). Conversely, the Houh testimony presented
`
`with the Petition was that the objects of Gibbs “exemplify the
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`‘containers’ claimed in claim 2 of the ’536 patent.” Final Dec. 22
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`4
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`(citing Ex. 1003 ¶ 110).
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`As Patent Owner argued in its Response, Petitioner’s final
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`position is arguably a change from its original contention set forth in
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`the Petition. PO Resp. 24, 37–38; see Final Dec. 18–19. Patent
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`Owner argued that the testimony regarding where the “container”
`
`element was shown in Gibbs changed between the original Houh
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`Declaration (Ex. 1003), filed with the Petition, and the later filed
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`Houh Supplemental Declaration (Ex. 1009) and the Houh Deposition
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`(Ex. 1010). PO Resp. 24, 37–38 Petitioner’s final position, repeated
`
`in the Request, mirrors the later Houh testimony. See, e.g., Req.
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`Reh’g. 3, 4, 5, 6, 7. We did not misapprehend those arguments.
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`Rather, we found them unpersuasive.
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`Petitioner argues we misapprehended or overlooked evidence that the
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`Gibbs train management software “in operation creates ‘containers.’” Req.
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`Reh’g. 4. Petitioner concludes that because the single map object interacts
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`with report and transport objects the interactive registers are disclosed in
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`Gibbs. Id. at 5. This argument again relies on the Houh testimony. Id. at 4
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`(citing Ex. 1003 ¶¶ 91, 93, 128, 161, 166, 172; Ex. 1009 ¶¶ 14, 33–34). We
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`specifically addressed this argument, and found it unpersuasive, in the Final
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`Decision. Final Dec. 18, 20, 22. Neither the Petition nor the Houh
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`Declaration stated specifically that a collection of objects that run in the
`
`system of Gibbs is the claimed container. Id. at 22 (citing Ex. 1003 ¶¶ 90,
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`92, 94, 96–97, 104). The Houh Declaration identified only Gibbs’ objects as
`
`meeting the container limitation, and not the Gibbs system as Petitioner now
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`argues. Id. “As such, Petitioner’s evidence is inconsistent and does not
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`specify where the container element is found in Gibbs.” Id. at 23.
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`5
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`It is within the Board’s discretion to assign the appropriate
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`weight to testimony offered by the witnesses. Yorkey v. Diab, 601
`
`F.3d 1279, 1284 (Fed. Cir. 2010) (Board has discretion to give more
`
`weight to one item of evidence over another “unless no reasonable
`
`trier of fact could have done so”). The Board declines to reweigh the
`
`evidence in considering a motion for rehearing. Ex parte NTP, Inc.,
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`Appeal No. 2008-004594, 2010 WL 429233, at *1 (BPAI Feb. 4,
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`2010).
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`2. Consistent Reliance on Gibbs’ System
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`Petitioner next argues it consistently relied on the system of Gibbs, a
`
`set of objects, and not just Gibbs’ objects as disclosing the container
`
`limitation. Req. Reh’g. 8–9. As discussed immediately above, the Final
`
`Decision found that Petitioner’s evidence from the beginning of trial to its
`
`conclusion was inconsistent. However, as also discussed above, we were
`
`persuaded by the Green testimony concerning what was disclosed in Gibbs
`
`and rather than arguable inconsistency in the Hough testimony. We weighed
`
`the evidence and found that Petitioner had not established by a
`
`preponderance of the evidence that Gibbs disclosed the container limitation.
`
`That Petitioner disagrees is not a reason for granting rehearing.
`
`C. The Construction of “a first
`register having a unique container iIdentification value”
`
`
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`Petitioner alleges we committed legal error in construing the claim
`
`term “a first register having a unique container identification value” in claim
`
`2 to mean “a first register having a value that uniquely identifies the given
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`container.” Req. Reh’g. 10–13. Petitioner argues this construction is too
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`limited and is not the broadest reasonable interpretation. Id.
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`6
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`Case IPR2014-00086
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`The Request restates arguments made in Petitioner’s Reply and
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`rejected in the Final Decision. Req. Reh’g. 11; see Final Dec. 12–13.
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`Petitioner contends we overlooked evidence that favored Petitioner’s
`
`proposed construction. Req. Reh’g. 11–12. The overlooked evidence cited
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`by Petitioner is the deposition testimony of the experts. Id. at 12. The
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`testimony Petitioner cites was specifically addressed. Final Dec. 14. We
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`considered the claim language, Specification, and prosecution history and
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`did not rely on extrinsic evidence. Id. at 13–15. Petitioner does not show
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`where we misapprehended or overlooked the arguments previously made or
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`the evidence previously presented.
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`In our construction based on the Specification (Final Dec. 13–14),
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`Petitioner argues we committed error in incorporating “only a portion of the
`
`definition of an ‘identity register’ – that it contain a ‘unique identification’
`
`of the ‘given container’” and omitted that the identity register is “network
`
`wide.” Req. Reh’g. 13. Even were we to expand the construction as
`
`proposed by Petitioner, there is no explanation of how the addition of
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`“network wide” would support Petitioner’s proposed construction and thus
`
`change the outcome of the case. Neither does Petitioner argue persuasively
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`that the additional language it proposes is a necessary addition to our
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`construction.
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`D. Gibbs Discloses a “neutral space register”
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`Petitioner argues we overlooked or misapprehended evidence that
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`Gibbs discloses a neutral space register, as we construed the term. Req.
`
`Reh’g. 14–15. In its Petition, Petitioner relied on the train consist report of
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`Gibbs to meet the limitation. Id. at 14 (citing Pet. 18). Following our
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`construction, we concluded the train consist report did not meet the
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`7
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`limitation because no space was identified where interaction may occur.
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`Final Dec. 27. We found Petitioner’s arguments citing to Gibbs train consist
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`report and concluding that a neutral register was present were not
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`persuasive, but merely conclusory. Id.
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`Petitioner’s first contention is that we failed to appreciate that a train
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`must be “depicted on the map” before it can be selected for the train consist
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`report. Req. Reh’g. 14–15. Then, upon selection of a train, the user can
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`“initiate the interaction between the transport object and the report object.”
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`Id. at 15 (citing Pet. Reply 14–15). We addressed this argument in the Final
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`Decision and, as stated above, found the argument to be unsupported
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`conclusion. Final Dec. 27. Further, we agreed with Patent Owner’s
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`arguments, which were not addressed by Petitioner. Id. The arguments we
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`found persuasive included that the train consist report generated locational
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`information, i.e., space where interaction may occur, only after a train was
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`selected. Id. (see PO Resp. 52). Space was identified only after another
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`action. Id. The Request does not address this basis for our decision or show
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`how we misapprehended the train consist report in reaching our
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`determination.
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` Next, Petitioner argues we erred in finding that the longitude and
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`latitude data generated by the train consist report were “mere data” when our
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`construction of “neutral space register” stated that the space identified was a
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`“value.” Req. Reh’g. 15. Petitioner misunderstands our reasoning in the
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`Final Decision. We did not exclude data from being part of what might be
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`identified as space for interaction in the neutral space register. Rather, we
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`determined that the “mere collection of data” alone does not disclose the
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`recited interaction. Final Dec. 27.
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`8
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`Case IPR2014-00086
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`Patent 7,010,536 B1
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`CONCLUSION
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`
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`Petitioner has not carried its burden of demonstrating that our Final
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`Decision determining that claims 2–14 and 16 of the ’536 patent are not
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`unpatentable under 35 U.S.C. § 102 over Gibbs misapprehended or
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`overlooked any matters or that the Board abused its discretion. 37 C.F.R. §
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`42.71(d).
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`For the foregoing reasons, it is
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`ORDER
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`
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`ORDERED that Petitioner’s Request for Rehearing is denied.
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`
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`PETITIONER:
`
`Jeffrey Kushan
`jkushan@sidley.com
`
`Vaibhav P. Kadaba
`wkadaba@kilpatricktownsend.com
`
`Robert J. Artuz
`rartuz@kilpatricktownsend.com
`
`PATENT OWNER
`
`Anthony Patek
`pto@gutridesafier.com
`
`Todd Kennedy
`todd@gutridesafier.com
`
`9
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