Trials@uspto.gov
`571-272-7822
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`
`
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`Paper 49
`Entered: March 29, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BLACKBERRY CORP., and BLACKBERRY LTD.,
`Petitioner,
`
`v.
`
`ZIPIT WIRELESS, INC.,
`Patent Owner.
`____________
`
`Case IPR2014-01509
`Patent 8,190,694 B2
`____________
`
`
`
`Before TREVOR M. JEFFERSON, NEIL T. POWELL, and
`FRANCES L. IPPOLITO, Administrative Patent Judges.
`
`IPPOLITO, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`571-272-7822
`
`
`
`
`
`Paper 49
`Entered: March 29, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BLACKBERRY CORP., and BLACKBERRY LTD.,
`Petitioner,
`
`v.
`
`ZIPIT WIRELESS, INC.,
`Patent Owner.
`____________
`
`Case IPR2014-01509
`Patent 8,190,694 B2
`____________
`
`
`
`Before TREVOR M. JEFFERSON, NEIL T. POWELL, and
`FRANCES L. IPPOLITO, Administrative Patent Judges.
`
`IPPOLITO, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`IPR2014-01509
`Patent 8,190,694 B2
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`INTRODUCTION
`I.
`Petitioner Blackberry Corp. and Blackberry LTD. filed a Petition on
`September 16, 2014, requesting an inter partes review of claims 1, 2, 4–7, 9,
`10, and 12 of U.S. Patent No. 8,190,694 B2 (Ex. 1001, “the ’694 patent”).
`Paper 1 (“Pet.”). Patent Owner Zipit Wireless, Inc. did not file a Preliminary
`Response to the Petition.
`Based on these submissions, we instituted trial as to claims 1, 2, 4–7,
`9, 10, and 12 as follows:
`
`Reference(s)
`
`Basis Claim(s) Challenged
`
`§ 102 9, 10, and 12
`Lotter1
`§ 103 1, 2, 4, and 5
`Lotter and Patron 2
`Lotter, Patron, and Walter3 § 103 6 and 7
`Adams4 and Patron
`§ 103 1, 2, and 4–7
`
`
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`Paper 6, 25 (“Dec. to Inst.”).
`After institution, Patent Owner filed a Patent Owner’s Response
`(Paper 10, “PO Resp.”), and Petitioner filed a Reply (Paper 13, “Reply”).
`Additionally, we authorized a Patent Owner Sur-Reply, which Patent Owner
`filed on November 6, 2015 (Paper 24, “Sur-Reply”). Petitioner further filed
`
`
`1 U.S. Patent No. 7,996,005 B2; issued Aug. 9, 2011 (Ex. 1005, “Lotter”).
`2 U.S. Patent Publication No. 2005/0060167 A1; published March 17, 2005
`(Ex. 1006, “Patron”).
`
`3 U.S. Patent Publication No. 2006/0014547 A1; published Jan.19, 2006 (Ex.
`1007, “Walter”).
`4 U.S. Patent Publication No. 2005/0257209 A1; published Nov. 17, 2005
`(Ex. 1004, “Adams”).
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`a notice withdrawing portions of its Reply.5 Paper 36.
`Petitioner also filed a Motion to Exclude. Paper 32 (“Pet. Mot.
`Exclude”). Patent Owner filed an Opposition to Petitioner’s Motion to
`Exclude (Paper 39, “PO Exclude Opp.”), and Petitioner filed a Reply (Paper
`43, “Pet. Exclude Reply”).
`Additionally, Patent Owner filed a Motion to Exclude. Paper 35 (“PO
`Mot. Exclude”). Petitioner filed an Opposition to Patent Owner’s Motion to
`Exclude (Paper 40, “Pet. Exclude Opp.”), and Patent Owner filed a Reply
`(Paper 45, “PO Exclude Reply”).
`An oral hearing was conducted on December 7, 2015. A transcript of
`the oral hearing is included in the record. Paper 47 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6(c). This decision is a Final
`Written Decision under 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73 as to the
`patentability of claims 1, 2, 4–7, 9, 10, and 12. For the reasons discussed
`below, Petitioner has demonstrated by a preponderance of the evidence that
`claims 1, 2, and 4–7 are unpatentable. However, as explained below,
`Petitioner has not demonstrated, by a preponderance of the evidence, that
`claims 9, 10, and 12 are unpatentable.
`A. Related Proceedings
`The ’694 patent is involved in a district court proceeding in the U.S.
`District Court for the District of South Carolina captioned Zipit Wireless Inc.
`v. BlackBerry Ltd., No. 6:13-cv-2959-JMC (D.S.C. 2013). Pet. 1.
`Additionally, Petitioner has filed Petitions challenging the patentability of
`
`
`5 Petitioner’s Exhibit 1028 is a red-lined version of its Reply showing
`withdrawn portions.
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`certain claims of Patent Owner’s U.S. Patent Nos. 7,292,870 B2 (IPR2014-
`01507); 7,894,837 B2 (IPR2014-01506); and 8,086,678 B2 (IPR2014-
`01508).
`
`B. The ’694 Patent
`The ’694 patent is directed to controls for network communication
`devices such as parental controls for mobile instant messaging terminals.
`Ex. 1001, 1:7–9. Figure 1 of the ’694 patent is reproduced below.
`
`
`Figure 1 shows system 10 that regulates usage of a mobile computer
`network communication device. Id. at 3:7–9. System 10 includes home
`location 14, remote site location 18, device regulation/support site 20, and
`internet service provider (“ISP”) site 24. Id. at 3:42–45. As shown, these
`sites and locations are coupled to one another through a computer
`network 28. Id. at 3:45–47. Home location 14 has a local area network
`(“LAN”) that includes personal computer (“PC”) 30 and a mobile computer
`communication device, such as instant messaging terminal 34. Id. at 3:49–
`52. As shown, these devices communicate with ISP site 24 or device
`regulation/support site 20 through wireless router 38. Id. at 3:52–54.
`Figure 1 further shows device regulation/support site 20 includes
`mobile device communication gateway 54 that communicates with device
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`database 58, profile server 60, and regulation database 64. Ex. 1001, 5:4–7.
`Regulation database 64 stores the controls and rules selected or generated by
`an administrative user for a device registered with regulation/support site 20.
`Id. at 5:13–16. These are the rules and controls applied to communications
`made with a particular mobile device registered with the site 20. Id. at 5:16–
`18. Regulation site 20 may include identification data unique for each
`mobile computer network communication device registered with site 20. Id.
`at 4:65–5:6. The unique identifier enables the regulation of the device to be
`implemented without recourse to a user or account identification. Id. at
`6:25–27. The ’694 patent indicates regulation database 64 may store the
`controls and rules selected or generated by an administrative user for a
`device registered with regulation/support site 20 that apply to
`communications made with a particular mobile device registered with site
`20. Id. at 5:13–16.
`The ’694 patent further discloses that mobile communication device
`34 includes a support communication module configured to communicate
`with regulation/support site 20 in response. Ex. 1001, 6:52–55, 6:62–65.
`For registration of device 34, communication module sends a registration
`message to regulation/support site gateway 54 that includes the unique
`identifier for device 34. Id. at 7:62–64. Gateway 54 determines if the
`unique identifier is in the device database 58. Id. at 7:64–67. The
`communication module also monitors a user’s command input to device 34.
`Id. at 9:7–10; Fig. 6. This process determines whether the entered command
`requires evaluation by control site 20. Id. at 9:10–11. For example, a user
`command may prompt the communication module to generate a monitor
`message that includes the unique device identifier and data from the
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`command required for control processing at control site 20. Id. at 9:14–18.
`Control site 20 receives the monitor message and may determine whether it
`is from a device having a unique identifier in device database 58 and
`whether the device is registered. Id. at 9:42–45. Once authenticated, the
`monitor message is parsed and the data compared to rules and control
`parameters stored in association with the device. Id. at 9:52–54. If the data
`violates a rule/parameter, a command message is generated and sent to the
`device for execution. Id. at 9:54–57; Fig. 7.
`C. Illustrative Claim
`Of the challenged claims, claims 1 and 9 are independent. Claims 1
`and 9 reproduced below are illustrative of the claimed subject matter:
`1. A method for controlling operation of a computer
`network communication device that communicates over a
`computer network comprising:
`generating, with a computer network communication
`device, monitor messages having a unique device identifier and
`command identification data;
`sending the generated monitor messages to a control site
`in background to a communication session between the
`computer network communication device and a communication
`service;
`verifying with a server at the control site that the unique
`device identifier in the generated monitor messages received at
`the control site is also stored in a device database;
`comparing the command identification data in a monitor
`message to control data stored in a control database with the
`server in response to the unique device identifier in the monitor
`message also being stored in the device database; and
`generating control messages to operate the computer
`network communication device with the server in response to
`the command identification data in the monitor message failing
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`to correspond to the control data stored in the control database,
`the control messages comprising:
`a computer network communication device stop
`command generated in response to the command identification
`data corresponding to a communication from the computer
`network communication device outside prescribed time limits
`stored in the control database.
`
`9. A method for control of a computer network
`communication device comprising:
`generating a data message with a computer network
`communication device in response to a command entered by a
`user, the data message being configured for use with a service
`accessed through an Internet Service Provider;
`generating a monitor message with the computer network
`communication device containing a unique device identifier and
`data corresponding to the data message;
`sending the generated monitor message from the
`computer network communication device to a control site;
`identifying control data stored in a control database in the
`control site in response to the monitor message received from
`the computer network communication device having a unique
`device identifier that is verified with a server at the control site
`as also being stored in a device database in the control site;
`generating a command message corresponding to the
`control data, the command message including a block
`command, in response to the monitor message identifying the
`service accessed through the Internet Service Provider having a
`block rule stored in the control database in association with the
`service;
`sending the command message from the control site to
`the computer network communication device;
`parsing the command message in the computer network
`communication device to identify a block command in the
`command message; and
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`displaying a message for the user indicating that the
`command has been blocked.
`
`Ex. 1001, 12:41–13:2, 13:41–14:19.
`
`
`II. ANALYSIS
`A. Weight Given to Patent Owner’s Declarant
`1. Dr. Konchitsky’s Ph.D.
`Petitioner asserts that Patent Owner’s declarant, Dr. Alon Konchitsky,
`did not receive a genuine Ph.D. from Bournemouth University and, as a
`result, Dr. Konchitsky’s testimony is entitled to no weight. Reply 1. Patent
`Owner responds that Dr. Konchitsky received an electrical engineering
`Ph.D. degree from Bournemouth University Extension in Israel, Campus of
`Ramat Gan College, and submits that several documents, including Dr.
`Konchitsky’s Ph.D. diploma and Ph.D. payment receipts, corroborate Dr.
`Konchitsky’s Ph.D. Sur-Reply 1–3; Exs. 1059–1060. In his declaration, Dr.
`Konchitsky provides that he “unequivocally state[s] – under penalty of
`perjury – that I did in fact receive my Ph.D. in electrical engineering
`from the Bournemouth University Extension in Israel, Campus of
`Ramat Gan College.” Ex. 2082 ¶ 17.
`We note first that the parties do not dispute that Dr. Konchitsky is
`qualified to provide his expert opinion on the subject matter of the ’694
`patent even without considering his Ph.D. from Bournemouth University.
`Sur-Reply 13–15; Tr. 4:14–22, 21:1–15. Petitioner concedes that Dr.
`Konchitsky “worked at Nokia. He worked at a company that was purchased
`by Intel. To be able to testify about emoticons and parental controls on
`devices he meets the low threshold under the federal rules for providing
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`expert testimony.” Tr. 4:21–24. Accordingly, the circumstances
`surrounding Dr. Konchitsky’s Ph.D. go to the weight of his testimony rather
`than admissibility.
`Further, we do not find that Petitioner has demonstrated that Dr.
`Konchitsky’s testimony should be afforded diminished weight because Dr.
`Konchitsky falsified his Ph.D. from Bournemouth University Extension
`through Ramat Gan College in Israel. Petitioner concedes that
`[t]he sur-reply shows that it’s possible that Konchitsky did
`receive a degree from either Ramat Gan or the extension at
`Ramat Gan. That was not an authorized diploma, had nothing
`to do with the Bournemouth University. And whether or not he
`knew that or was unwittingly duped into believing that he was
`getting a genuine Bournemouth University diploma, in the time
`allotted in IPR and our resources, there’s just not enough time
`and money available to prove that circumstantial case whether
`he knew that his diploma was not genuine.
`
`Tr. 5:14–22. Additionally, Petitioner has withdrawn all its allegations that
`Dr. Konchitsky himself engaged in any act of forgery or perjury with respect
`to his Ph.D. Ex. 2106; Tr. 4:11–23, 6:13–8:2. This is not to say that there is
`sufficient evidence to establish whether Dr. Konchitsky’s Ph.D. is genuine.
`However, as Petitioner argues, the issue is one of Dr. Konchitsky’s veracity
`and credibility. Tr. 7:7–17. Thus, while it may be possible Dr.
`Konchitsky’s Ph.D. is not genuine, Petitioner has not shown that Dr.
`Konchitsky engaged in any wrongdoing in obtaining his Ph.D. or
`representing that he obtained a Ph.D. from Bournemouth University
`Extension in Israel. Thus, we do not diminish the weight of Dr.
`Konchitsky’s on this basis.
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`2. Dr. Konchitsky’s Master’s Degree in Tourism and Hospitality
`Management
`Petitioner further argues that Dr. Konchitsky’s mischaracterization of
`his Master’s degree from Bournemouth University (Tr. 6:15–23)
`demonstrates Dr. Konchitsky’s lack of credibility and diminishes the weight
`of his testimony (see id. at 9:7–14). Petitioner does not dispute Dr.
`Konchitsky received a Master’s degree from Bournemouth University. Tr.
`13:9–15. Rather, Petitioner asserts Dr. Konchitsky has embellished his
`Master’s degree in tourism and hospitality management by describing it as a
`degree in “management and business.” Id. at 5:23–25.
`Dr. Konchitsky and Patent Owner do not dispute that Dr.
`Konchitsky’s curriculum vitae does not state that his Master’s degree was
`issued in “Tourism and Hospitality Management.” Ex. 2082 ¶ 94; see
`Tr. 21:5–7. Dr. Konchitsky asserts that he believes his CV is accurate
`because his:
`Master’s thesis was focused on computers and computer science,
`and how personal computers could best be integrated into a
`hotel’s business. This field, where I was forecasting the trend in
`a particular vertical industry, is part of Information Technology
`in graduate business studies, which is a subcategory of the school
`of management.
`
`Ex. 2082 ¶ 94. While an argument may be made that Dr. Konchitsky’s
`description of his Master’s degree is merely harmless embellishment or an
`artful rewording having the same effective meaning, we find that Dr.
`Konchitsky, nevertheless, incorrectly described his Master’s degree and
`misrepresented his credentials to the Board. Further, that Dr. Konchitsky
`may be qualified to testify based on his undergraduate degrees and
`experience, as asserted by Patent Owner (Tr. 21:16–5), does not mitigate Dr.
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`Konchitsky’s misrepresentation of his credentials nor preclude us from
`weighing his testimony in light of such misrepresentation. We expect all
`parties and individuals involved in proceedings before the Board to “have a
`duty of candor and good faith to the Office during the course of a
`proceeding.” 37 C.F.R. § 42.11. Moreover, we agree with the sentiment
`that “[e]ven the slightest accommodation of deceit or a lack of candor in any
`material respect quickly erodes the validity of the process. As soon as the
`process falters in that respect, the people are then justified in abandoning
`support for the system in favor of one where honesty is preeminent.” United
`States v. Shaffer Equip. Co., 11 F.3d 450, 457–59 (4th Cir. 1993).
`Therefore, we will consider Dr. Konchitsky’s statements regarding his
`Master’s degree in affording his testimony the appropriate weight.
`3. Dr. Konchitsky’s Translation of Mr. Cohen’s Statement
`Petitioner further argues that the circumstances of Dr. Konchitsky’s
`incorrect translation of Mr. Cohen’s Statement (Ex. 2092), submitted to
`support his Ph.D. from Bournemouth University Extension through Ramat
`Gan College in Israel, demonstrate a lack of credibility and reliability. Pet.
`Mot. Exclude 4; Ex. 1061. In particular, Petitioner argues that the incorrect
`English translation of Mr. Cohen’s Statement includes the phrase “[d]uring
`the time period 1999-2002, the Extension offered a doctoral program in
`communication systems in electrical engineering,” for which the Hebrew
`counterpart does not appear in the original Hebrew version. Ex. 2092, 2.
`At the Oral Hearing, counsel for Patent Owner indicated it relied on
`Dr. Konchitsky for the translation of all documents in his supplemental
`declaration (Ex. 2082). Tr. 13:22–14:11. Counsel for Patent Owner further
`represented that there was a “mismatching problem between the drafts” that
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`resulted in the submission of an English version that did not match the
`statement in Hebrew. Id. at 14:16–21. Counsel for Patent Owner indicated
`that
`
`we have now obtained a declaration from Dr. Konchitsky that
`explains how the error occurred. And we also have a certified
`translation and have obtained a corrected, if you will,
`Exhibit 2092 from Mr. Cohen that matches the English version.
`And in short, just like I said Friday during the call,
`Dr. Konchitsky says it was a mismatching problem between the
`drafts that were discussed and exchanged with Mr. Cohen. He
`apparently mixed up the English translation with the Hebrew
`version. We don’t, of course, speak Hebrew, so we couldn't
`catch the mistake ourselves.
`
`Id. at 14:12–21. Patent Owner did not provide a certified translation of
`Exhibit 2092 at the time of filing as it was required to do per 37 C.F.R.
`§ 42.63(b).
`Based on the entire record, we find that this “mismatching” situation
`could have been avoided if a proper certified translation of Exhibit 2092 had
`been completed and submitted as required by Rule 42.63. Although we do
`not dismiss Dr. Konchitsky’s testimony on this basis,6 the misleading
`translation proffered by Patent Owner erodes the foundation of Dr.
`
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`6 Petitioner has requested authorization to file a motion for sanctions based
`on Dr. Konchitsky’s translation of Exhibit 2092. Specifically, at the Oral
`Hearing, Petitioner requested reimbursement for the cost of obtaining
`certified translations of Exhibits 2087, 2091, and 2092. Tr. 9:13–16. On
`February 12, 2016, by email correspondence, the parties informed us that
`Patent Owner “has fully reimbursed Petitioner for the cost of obtaining
`certified translations of Exhibits 2087, 2091, and 2092.” Ex. 3001.
`Accordingly, we treat Petitioner’s request to file a motion for sanctions as
`moot.
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`Konchitsky’s declaration and the weight we grant his testimony, and
`undermines the foundation of our trial process.
`
`With these considerations in mind, we now turn to the construction of
`certain claim terms.
`
`
`B. Claim Construction
`In an inter partes review, “[a] claim in an unexpired patent shall be
`given its broadest reasonable construction in light of the specification of the
`patent in which it appears.” 37 C.F.R. § 42.100(b); see also In re Cuozzo
`Speed Techs., LLC, 793 F.3d 1268, 1278–79 (Fed. Cir. 2015) (“We conclude
`that Congress implicitly approved the broadest reasonable interpretation
`standard in enacting the AIA” and “the standard was properly adopted by
`PTO regulation.”), cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee,
`136 S. Ct. 890 (mem.) (2016) . There is a presumption that a claim term
`carries its ordinary and customary meaning. CCS Fitness, Inc. v. Brunswick
`Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002); In re Translogic Tech., Inc.,
`504 F.3d 1249, 1257 (Fed. Cir. 2007).
`“Control database” and “device database” (claim 1)
`For purposes of our Decision to Institute, we determined that no claim
`terms needed express construction. Dec. to Inst. 7.
`In the Patent Owner’s Response, Patent Owner proposes a
`construction for the claim term “database” as meaning “a collection of
`information or data that is structured or organized to allow quick access and
`retrieval of the information by a computer.” PO Resp. 12. Patent Owner
`further urges that a database excludes “any ‘list of devices,’” and includes
`data organized in records with each record having one or more fields. Id. at
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`12–14. Patent Owner asserts additionally that the claim phrases “control
`database” and “device database” require two separate and distinct databases
`under the broadest reasonable construction. Id. at 14–15. Patent Owner
`asserts that Petitioner’s declarant, Dr. Arthur Brody testified in his
`“Litigation Declaration” that the “plain language of the asserted claims
`require that the ‘device database’ and ‘control database’ are two distinct
`databases.” Id. at 9–10 (citing Ex. 2001 ¶ 190).
`Petitioner responds that Patent Owner’s proposed definition is
`essentially the same definition proposed previously by Petitioner. Reply 2.
`In the Petition, Petitioner proposes that “database” means “a collection of
`information stored for retrieval and use by a computer system.” Pet. 8;
`Reply 2. Petitioner further asserts that “a collection of information with
`absolutely no structure or organization could not be retrieved and used by a
`computer system. Accordingly, any collection of information with even the
`simplest structure or organization satisfies both experts’ definition of
`‘database.’” Reply 2. Petitioner, however, disagrees with Patent Owner’s
`position that the terms “control database” and “device database” require
`separate databases because the plain meaning of the claim language and the
`disclosure of the ’694 patent do not require separate databases. Id. at 3–4.
`Based on the complete record before us, we agree with the parties that
`the broadest reasonable interpretation of the term “database” is “a collection
`of information or data that is structured or organized to allow access and
`retrieval of the information by a computer.” This interpretation is consistent
`with the Specification, which, for example, describes device database 58 as
`storing identification data and allowing access of stored identification data
`by gateway 54. See Ex. 1001, 5:4–7, 8:7–9. Therefore, we adopt this
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`construction. Moreover, we agree with Petitioner’s position that a
`“database” as claimed does not require a specific type of structure and even
`the “simplest” structure or organization of information would satisfy the
`element. The literal language of the claim language does not require fields,
`records, etc., and does not exclude the use of lists.
`Additionally, we determine that the literal language of the claim terms
`“control database” and “regulation database” do not require separate and
`distinct databases. Further, we have considered both parties’ arguments
`regarding the respective position each has taken in the related district court
`proceeding. These arguments are instructive, but not binding on our
`construction of the claim term “database” in our review. For example, Dr.
`Brody’s testimony in the district court proceeding that the Specification
`describes individual control and regulation databases (Ex. 2001 ¶ 191) does
`not persuade us that the claim terms require separate and distinct databases.
`It is well-settled that even “the fact that the specification describes only a
`single embodiment, standing alone, is insufficient to limit otherwise broad
`claim language.” Howmedica Osteonics Corp. v. Wright Med. Tech., Inc.,
`540 F.3d 1337, 1345 (Fed. Cir. 2008); see also Phillips v. AWH Corp., 415
`F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (“Although the specification
`often describes very specific embodiments of the invention, we have
`repeatedly warned against confining the claims to those embodiments.”).
`Accordingly, we construe the term “database” as “a collection of
`information or data that is structured or organized to allow access and
`retrieval of the information by a computer,” and do not limit “control
`database” and “device database” to separate and distinct databases.
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`C. Claims 9, 10, and 12 – Anticipated by Lotter (Ex. 1005)
`Petitioner argues claims 9, 10, and 12 are anticipated under 35 U.S.C.
`§ 102 by Lotter. Pet. 9–20. Patent Owner contests Petitioner’s position. As
`explained below, we have considered the arguments and evidence presented
`by both parties, and we determine Petitioner has not shown by a
`preponderance of the evidence that claims 9, 10, and 12 are anticipated by
`Lotter.
`To establish anticipation under 35 U.S.C. § 102, each and every
`element in a claim, arranged as recited in the claim, must be found in a
`single prior art reference. Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d
`1359, 1369 (Fed. Cir. 2008); Karsten Mfg. Corp. v. Cleveland Golf Co., 242
`F.3d 1376, 1383 (Fed. Cir. 2001). To anticipate, a prior art reference must
`disclose more than “multiple, distinct teachings that the artisan might
`somehow combine to achieve the claimed invention.” Net MoneyIN, 545
`F.3d at 1371; see also In re Arkley, 455 F.2d 586, 587 (CCPA 1972) (“The
`[prior art] reference must clearly and unequivocally disclose the claimed
`[invention] or direct those skilled in the art to the [invention] without any
`need for picking, choosing, and combining various disclosures not directly
`related to each other by the teachings of the cited reference.”). Although the
`elements must be arranged or combined in the same way as in the claim,
`“the reference need not satisfy an ipsissimis verbis test,” i.e., identity of
`terminology is not required. In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir.
`2009); In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). Moreover, the prior
`art reference is read from the perspective of one with ordinary skill in the art.
`In re Graves, 69 F.3d 1147, 1152 (Fed. Cir. 1995) (“A reference anticipates
`a claim if it discloses the claimed invention ‘such that a skilled artisan could
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`take its teachings in combination with his own knowledge of the particular
`art and be in possession of the invention.’”); In re Preda, 401 F.2d 825, 826
`(CCPA 1968) (“[I]t is proper to take into account not only specific teachings
`of the reference but also the inferences which one skilled in the art would
`reasonably be expected to draw therefrom.”).
`1. Summary of Lotter (Ex. 1005)
`Lotter describes systems and methods directed to monitoring the
`communications to and from a mobile communication device. Ex. 1005,
`Abstract. Lotter discloses that “each of the data services on a mobile
`communication device may be monitored against rules stored in a central
`data center repository.” Id. Figure 1 is reproduced below.
`
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`Figure 1 shows Data Gateway program tool 30 and wireless devices
`10, 12, and 14, which represent users whose activities are monitored.
`Ex. 1005, 4:58–61. Lotter teaches that each of devices 10, 12, and 14 may
`include memory and a processor configured to run various programs (e.g.,
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`software applications) stored in the memory, including respective Data
`Monitoring program tools 11, 13, and 15 that communicate with Data
`Gateway 30. Id. at 4:61–67, 5:41–46. Data Monitoring program tools 11,
`13, and 15 monitor the data services used on respective devices 10, 12, and
`14. Id. at 5:1–3.
`Figure 1 further shows Data Gateway 30 includes Activity Log 40
`database in Data Center 17. Id. at Fig. 1. Activity Log 40 contains an entry
`for each use of a data service on wireless devices 10, 12, and 14. Id. at
`5:14–15. Data Center 17 also contains Permissions 50 database that lists the
`wireless devices to be monitored (e.g., wireless devices 10, 12, and 14) and
`the rules to apply to allow, deny, and/or alert of data service activity
`occurring on the wireless devices being monitored. Id. at 5:18–22. Lotter
`further discloses that Alert Monitor 70 program (shown in Figure 1) “waits
`for new entries to be made into Activity Log 40 [and] sends an alert to one
`or more users via Data Gateway 30, such as for example to a cell phone 18
`using SMS Text Messaging or Email an 19 account” when unauthorized
`activity is detected. Id. at 5:23–28.
`Referring to Figure 2, Lotter discloses Data Monitor program tool 21
`on Mobile Communications Device 20 as an example of data monitor 11,
`13, or 15 that captures data service activity on device 20. Id. at 5:62–65.
`Data Monitor program tool 21 monitors the inbound and outbound activity
`for each of these data services and sends a detailed log of these activities to a
`central repository. Id. at 6:26–29.
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`As an example of this operation, Figure 3H is reproduced below.
`
`
`Figure 3H shows a data flowchart for capturing an outbound instant message
`using Instant Messaging Application 25 on Mobile Communications Device
`20. Ex. 1005, 9:18–20. In step 117, an instant message is sent from Mobile
`Communications Device 20. Id. at 9:21–23. In step 127, Data Monitor 21
`recognizes that Instant Messaging Application 25 data service has been
`initiated and begins to capture information regarding the use of the data
`service including the unique Device ID of Mobile Communications Device
`20, the date/time stamp of the message, the destination username, and/or any
`contextual data. Id. at Fig. 3H. Once the message has been sent, Data
`Monitor 21 formats a data packet which includes the collected information
`(Activity Record) and sends one or more data packets to the central
`repository located in Data Center 17. Id. at 9:29–32.
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`Further, referring to Figures 7A and 7B, Lotter teaches that Alert
`Monitor 70 monitors records entered into Activity Log 40 database by Data
`Gateway 30. Ex. 1005, 13:10–12. “Each record is checked against
`Permissions 50 database.” Id. at 13:12–14. If the Log Activity is not
`authorized, Data Gateway 30 looks up the delivery notification method in
`Permissions 50 database and sends an alert message to one or more
`destinations. Id. at 13:15–23.
`Additional, Lotter describes another embodiment shown in Figures
`6A and 6B, reproduced below.
`
`
`
`Figures 6A and 6B illustrate an embodiment “where the contextual content
`of the communication is checked against permissions 50 database prior to
`allowing Mobile Communications Device 20 access to the data services 22
`through 29 and 31.” Ex. 1005, 12:42–47. In step 160, one or more data
`services 22 through 29 and 31 may be initiated on Mobile Communications
`Device 20. Id. at 12:47–49. In step 161, Data Monitor 21 recognizes that a
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`data service has been initiated and begins to capture information regarding
`the use of the data service including, for example, the unique Device ID of
`Mobile Communications Device 20, the date/time stamp, the originating or
`destination phone number, email address, or username, and/or the contextual
`content of the data packet. Id. at 12:49–55. Once the request for a data
`service has been received (Step 130), Data Monitor 21 formats a data packet
`which includes the collected information (Activity Record) and sends one or
`more data packets to the central repository located in Data Center 17. Id. at
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