Case218-1433
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`Document: 44
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`Filed201/09/2019
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`"(Human grates (fllnurt of Qppealz
`
`for the jfeberal QEirtut’t
`
`AC TECHNOLOGIES S.A.,
`Appellant
`
`V.
`
`AMAZON.COM, INC., BLIZZARD
`ENTERTAINMENT, INC.,
`Appellees
`
`2018-1433
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2015-
`01802.
`
`Decided: January 9, 2019
`
`MINGHUI YANG, Hardy Parrish Yang, LLP, Austin,
`TX, argued for appellant. Also represented by VICTOR G.
`HARDY; ANDREW DINOVO, NICOLE E. GLAUSER, DiNovo,
`Price, Ellwanger & Hardy LLP.
`
`DANIEL T. SHVODIAN, Perkins Coie, LLP, Palo Alto,
`argued for
`appellees.
`Also
`represented by
`CA,
`CHRISTOPHER LEE KELLEY, WING LIANG, VICTORIA Q.
`SMITH; DAN L. BAGATELL, Hanover, NH.
`
`

`

`Case218-1433
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`ACTECHS\LAMAZONCOM
`
`Before MOORE, SCHALL, and STOLL, Circuit Judges.
`
`STOLL, Circuit Judge.
`
`The Patent Trial and Appeal Board issued a final
`written decision ruling certain claims of AC Technologies
`S.A.’s US. Patent No. 7,904,680 unpatentable. On recon-
`sideration, it invalidated the remaining claims based on a
`ground of unpatentability raised by Amazon.com, Inc. and
`Blizzard Entertainment, Inc. (collectively, “Amazon”) in
`their petition but not addressed in the final written
`decision. AC appeals, arguing that the Board exceeded its
`authority and deprived it of fair process by belatedly
`considering this ground.
`
`We disagree. Precedent mandates that the Board
`consider all grounds of unpatentability raised in an
`instituted petition. The Board complied with due process,
`and AC does not persuade us that the Board erred in
`either its claim construction or its ultimate conclusions of
`
`unpatentability. Accordingly, we affirm.
`
`BACKGROUND
`
`I. The ’680 Patent
`
`The ’680 patent relates generally to data access and
`management. As shown in Figure 1, clients, such aS‘
`users’ (B) personal computers, may store data in or re-
`quest data stored in clusters (C), each composed of one or
`more cells (Z), via a network (N).
`
`

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`3
`
`
`
`CLIENT
`
`
`
`’680 patent col. 7 11.45—46, 53—56, col. 9 11. 55—56. The
`patent teaches that storing copies of data across a net-
`work improves data integrity and reduces network lag.
`Id. at col. 1 l. 28—col. 2 1.5, col. 211. 21—31. To achieve
`
`this, the system copies data—either “the entire data GD
`or the fields [data subsets] F”—redundantly across the
`network.
`Id. at col. 7 11. 1—3, col. 7 l. 65—col. 8 l. 2. The
`system determines when and Where to copy and store
`particular data as a function of predetermined data
`transmission parameters. See, e.g., id. at col. 2 11. 21—27.
`
`Representative claim 1 reads as follows:
`
`1. A data management system comprising:
`
`at least two data storage units;
`
`

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`AC TECHS. v. AMAZON.COM
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`at least one computer unit that stores at least one
`complete file, each file including a plurality of in-
`dividual pieces, the pieces containing parts of the
`files, wherein at least one piece is stored in a re-
`dundant manner in the at least two data storage
`units;
`
`a controller to enable data transmission between
`
`the data storage units and the computer unit;
`
`wherein at least one of the data storage units and
`computer unit measures a data transmission per-
`formance between at least one of the data storage
`units and the computer unit, the at least one piece
`being stored by the computer unit in a redundant
`manner in the data storage units as a function of
`the measured data transmission performance, and
`the computer unit accessing the at least one of the
`data storage units as a function of the measured
`data transmission performance; and
`
`wherein at least one of the at least two data stor-
`
`age units measures a data transmission perfor-
`mance between at 'least two of the at least two
`
`data storage units and the data storage units copy
`pieces that are redundantly stored in the system
`from one of the data storage units to another of
`the data storage units independently of an access
`of the computer unit based on the data transmis-
`sion performance measured between the data
`
`storage units.
`
`(emphases added to indicate limitations relevant to the
`parties’ disputes). Claim 2 depends from claim 1 and
`further recites that the data storage units and computer
`unit “are connected over a wireless network.” Claims 4
`
`and 6 depend from claims similar to claim 1 and likewise
`require connection over a wireless network.
`
`

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`
`II. Rabinovich
`
`It
`Amazon challenged the ’680 patent in an IPR.
`based its unpatentability arguments on a single prior art
`reference: “Dynamic Replication on the Internet,” by
`Dr. Michael Rabinovich. See Michael Rabinovich, et al.,
`AT&T Labs Research, Dynamic Replication on the Inter-
`net (1998) (J .A. 567—601). Figure 1 shows the Rabinovich
`system, which, as relevant here, includes both a client (0),
`which requests files, and hosts (h and s), which maintain
`those files and service client requests.
`
`
`
`J .A. 573. To better manage client requests, Rabinovich
`defines an algorithm for making and placing file copies
`across hosts. Among other things, that algorithm consid-
`ers both “cnt(s, x5),” defined as the total number of re-
`quests for file XS from a particular host (s) for a particular
`period of time, and “cnt(E, x5),” defined as the number of
`times those requests for file xs have passed an entity (E)
`as they pass from the client to host (s). J .A. 577—78.
`
`

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`III. The IPR
`
`Amazon’s petition for IPR presented three grounds.
`In Ground 1, Amazon argued that if “computer unit” were
`construed narrowly and mapped to Rabinovich’s client,
`Rabinovich rendered all claims of the ’680 patent obvious.
`In Ground 2 and Ground 3, Amazon argued that if “com-
`puter unit” were instead construed broadly and mapped
`to Rabinovich’s
`host,
`it
`anticipated
`some
`claims
`(Ground 2) and rendered remaining claims 2, 4, and 6
`obvious (Ground 3).
`
`At institution, the Board adopted the broad construc-
`tion of “computer unit” and then instituted review of
`Grounds 1 and 2. See Amazon.com, Inc. 12. AC Techs. S.A.,
`No. IPR2015-01802, Paper 10 at 7—9, 23, 25 (P.T.A.B.
`Mar. 8, 2016). With respect to Ground 3, the Board stated
`that it had “addressed Petitioner’s contentions in our
`
`analysis above of Ground 1 and determined that Petition-
`er has established a reasonable likelihood of showing that
`claims 2, 4, and 6 are unpatentable as obvious over Rab-
`inovich under our construction of ‘computer unit.’ As a
`result, this ground is moot.” Id. at 25. The Board con-
`cluded by instituting review of whether all claims of the
`’680 patent would have been obvious over Rabinovich and
`whether some claims were anticipated by Rabinovich. See
`id. at 26.
`
`The IPR proceeded, and AC filed a patent owner re-
`sponse.
`In it, AC argued that as properly construed, the
`claims require redundantly storing file pieces, not redun-
`dantly storing a complete file, and that Rabinovich failed
`to disclose this aspect of the claims. AC further argued
`that Rabinovich failed to disclose copying data “inde-
`pendently of an access of the computer unit” because
`Rabinovich’s replication algorithm relied on cnt(s, x3),
`entailing access of the client computers. At oral argu-
`ment, AC added that Rabinovich’s reliance on cnt(E, xs)
`also violated the “independently of an access” limitation.
`
`

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`In its final written decision, the Board rejected AC’s
`contention that the claims require storage of distinct
`individual pieces of the file. It reasoned that because the
`claims recite “at least one piece” and “pieces,” the claims
`contemplate and include copying and storing more than
`one piece of a file, including up to an entire file. And it
`noted that the claims do not limit how the system stores
`or copies the at least one file-piece(s). Amazon.com, Inc. v.
`AC Techs. S.A., No. IPR2015-01802, Paper 32 at 25—30
`(P.T.A.B. Mar. 6, 2017) (“Final Written Decision”). The
`Board also rejected AC’s contention that Rabinovich failed
`to teach copying data “independently of an access of the
`computer unit.” The Board agreed that if Rabinovich’s
`client corresponded to the claimed “computer unit,” Rab-
`inovich did not render any claims obvious under Amazon’s
`Ground 1. At the same time, however, it found that if
`Rabinovich’s host corresponded to the claimed “computer
`unit,” as argued by Amazon in Ground 2, then Rabinovich
`anticipated every claim except claims 2, 4, and 6 because
`neither of the cnt parameters cited by AC involved access
`of Rabinovich’s hosts.
`It found that cnt(s, x3) represented
`access of Rabinovich’s client, not the host. See id. at 18,
`33. And it credited Amazon’s expert’s unchallenged
`testimony that cnt(E, xs) measured possible future de-
`mand for a file and did not require access of the host. Id.
`at 34—36.
`
`The Board’s final decision did not address whether
`
`claims 2, 4, and 6 would have been obvious if the host
`were treated as the “computer unit,” as Amazon had
`asserted in Ground 3. Pointing to that omission, Amazon
`promptly moved for reconsideration. Despite AC’s protest
`that Ground 3 had never been part of the IPR, the Board
`determined that it should reach the challenge. With the
`Board’s permission, both parties submitted additional
`arguments, expert declarations, and supporting exhibits.
`AC urged that under the Board’s claim constructions, the
`claims permitted only ad hoc wireless networks, with
`
`

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`which Rabinovich would have been incompatible. But the
`Board determined that nothing in the claims or the speci-
`fication limited the claimed wireless network to a particu-
`lar type of network, and it held that Amazon had proven
`claims 2, 4, and 6 unpatentable. See Amazon.com, Inc. 1).
`AC Techs. S.A., No. IPR2015-01802, Paper 55 at 7—8
`(P.T.A.B. Nov. 14, 2017) (“Rehearing Decision”). AC now
`appeals.
`
`DISCUSSION
`
`Exclusive jurisdiction to review the Board’s final writ-
`ten decisions rests with this court. See 35 U.S.C. §319;
`see also 28 U.S.C. § 1295(a)(4)(A). We enforce the limits
`placed on the Board by statute and due process. See Wi-
`Fi One, LLC U. Broadcom Corp, 878 F.3d 1364, 1374
`(Fed. Cir. 2018) (en banc) (“Enforcing statutory limits on
`an agency’s authority to act is precisely the type of issue
`that courts have historically reviewed”); Belden Inc. v.
`Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015)
`(reviewing alleged denial of procedural due process rights
`by the Board). We consider de novo the Board’s legal
`conclusions. See PPC Broadband, Inc.
`12. Coming Optical
`Commc’ns RF, LLC, 815 F.3d 734, 739 (Fed. Cir. 2016).
`And we ensure that substantial evidence supports the
`Board’s factual findings. See Polaris Indus., Inc. 0. Arctic
`Cat, Inc., 882 F.3d 1056, 1064 (Fed. Cir. 2018).
`
`I
`
`AC argues that the Board erred procedurally when it
`invalidated claims 2, 4, and 6 based on a ground that it
`did not institute in its institution decision. AC claims
`
`that in doing so, the Board exceeded its statutory authori-
`ty and fell short of the requirements of due process. We
`address these arguments in turn.
`
`A
`
`At institution, the Board determines “whether to in-
`stitute an [IPR].” 35 U.S.C. § 314(b). The Supreme Court
`
`

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`recently clarified that this statutory language “indicates a
`binary choice—either institute review or don’t.” SAS Inst.
`Inc. v. Iancu, 138 S.'Ct. 1348, 1355 (2018).
`If the Board
`institutes an IPR, it must issue a final written decision
`addressing all claims challenged by the petitioner. See id.
`at 1359—60; see also 35 U.S.C. §318(a). And, we have
`held,
`if the Board institutes an IPR, it must similarly
`address all grounds of unpatentability raised by the
`petitioner. See Adidas AG 0. Nike, Inc., 894 F.3d 1256,
`1258 (Fed. Cir. 2018) (remanding noninstituted grounds
`for review); BioDelivery Scis. Int’l, Inc. v. Aquestive Ther-
`apeutics, Inc., 898 F.3d 1205, 1208 (Fed: Cir. 2018) (“Post-
`SAS cases have held that it is appropriate to remand to
`the PTAB to consider non-instituted claims as well as
`
`non-instituted grounds”).
`
`'
`
`that the
`This precedent forecloses AC’s argument
`Board exceeded its statutory authority when it reconsid-
`ered its
`final written decision and addressed non-
`instituted Ground 3.
`Indeed, it would have violated the
`statutory scheme had the Board not done so. See PGS
`‘ Geophysical AS v. Iancu, 891 F.3d 1354, 1360 (Fed. Cir.
`2018) (“Equal treatment of claims and grounds for institu-
`tion purposes has pervasive support in SAS”). Contrary
`to AC’s arguments, see Appellant’s Br. 49—53, neither
`§314(b)’s timing requirements nor § 314(d)’s limits on
`appealability alter the Board’s statutory obligation to rule
`on all claims and grounds presented in the petition. See
`SAS, 138 S. Ct. at 1356 (explaining that an IPR must
`“proceedfl ‘[i]n accordance with’ or ‘in conformance to’ the
`petition” (second alteration in original) (quoting Pursuant,
`Oxford
`English
`Dictionary
`(3d
`ed.
`2007),
`http://www.oed.com/view/Entry/155073)).
`
`B
`
`We recognize that SAS did not displace the Board’s
`responsibility to comply with due process. We have
`explained that due process dictates that parties before the
`
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`Board must receive adequate notice of the issues the
`Board will decide as well as an opportunity to be heard on
`those issues. See Genzyme Therapeutic Prods. Ltd. P’ship
`v. Biomarin Pharm.
`Inc., 825 F.3d 1360,
`1367—68
`(Fed. Cir. 2016).
`
`No due process Violation occurred here. As AC ad-
`mits, after the Board decided to accept Amazon’s rehear-
`ing request and consider Ground 3, it permitted AC to
`take discovery and submit additional briefing and evi-
`dence on that ground. Though AC did not receive a
`hearing specific to Ground 3, it never requested one. Had
`AC desired a hearing,
`it should have made a request
`before the Board. See, e.g., Intellectual Ventures II LLC U.
`Ericsson Inc., 686 F. App’x 900, 905—06 (Fed. Cir. 2017)
`(finding no due process Violation where party had notice
`and an opportunity to be heard and failed to request sur-
`reply or rehearing to address issue).
`
`II
`
`On the merits, AC initially challenges the Board’s in- .
`terpretation of the claim limitations reciting “piece(s).”
`We review the Board’s ultimate claim constructions de
`
`novo, see In re Man Mach. Interface Techs. LLC, 822 F.3d
`1282, 1285 (Fed. Cir. 2016), and we review any subsidiary
`factual findings involving extrinsic evidence for substan-
`tial evidence, see Teva Pharm. USA, Inc. v. Sandoz, Inc.,
`135 S. Ct. 831, 841 (2015).
`The broadest reasonable
`interpretation standard applies to this IPR.l Thus, the
`
`Per recent regulation, the Board applies the Phil-
`1
`lips claim construction standard to petitions filed on or
`after November 13, 2018.
`See Changes to the Claim
`Construction Standard for Interpreting Claims in Trial
`Proceedings Before the Patent Trial and Appeal Board,
`83 Fed. Reg. 51,340 (Oct. 11, 2018)
`(to be codified at
`37 C.F.R. pt. 42). Because Amazon filed its petition before
`
`

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`Board’s construction must be reasonable in light of the
`record evidence and the understanding of one skilled in
`the art. See Microsoft Corp. U. Proxyconn, Inc., 789 F.3d
`1292, 1298 (Fed. Cir. 2015), overruled on other grounds by
`Aqua Prods, Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017)
`(en banc).
`
`The Board acknowledged that a file consists of pieces
`of data. The Board explained, however, that because the
`claims recite storing “at least one piece” and copying
`“pieces” of data, they permit copying and storing of “more
`than one piece, and thus all of the pieces of an entire file.”
`Final Written Decision, at 25—26.
`The Board further
`explained that the claims impose no limit on how the
`system stores or copies pieces and they do not require
`storing or copying pieces on an individual basis or prohib-
`it storing or copying pieces “contiguously with other pieces
`of the same file.” Id. at 28—29.
`
`We conclude that the intrinsic evidence supports the
`Board’s View. The claims themselves specifically contem-
`plate storage and copying of multiple pieces of a file.
`They recite storing “at least one piece” and copying “pieces
`that are redundantly stored in the system.” ’680 patent
`col. 25 l. 64—col. 26 l. 24 (emphases added). Though other
`claims recite “the received piece” of data, such claims each
`refer back to the “at least one piece” limitation for ante-
`cedent basis.
`See, e.g.,
`id. at col. 27 11. 36—37, 49—50,
`col. 28
`ll.
`25—26,
`31—32; Oral Arg.
`at
`11:45—59,
`http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
`17-1999.MP3 (agreeing that “every time [the claim]
`refer[s] to a piece of data later in the claim, it refers back
`to ‘at least one piece’”). No claim limits how many pieces
`the system may copy and store, and no claim limits how
`the system copies and stores those pieces. Indeed, claim 1
`
`November 13, 2018, we apply the broadest reasonable
`interpretation standard.
`
`

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`requires storage of all pieces of a complete file as a com-
`plete file, at least on the computer unit. See ’680 patent
`col. 25 ll. 66—67 (“[A]t least one computer unit that stores
`at least one complete file, each file including a plurality of
`individual pieces .
`.
`.
`.”).
`
`The specification further supports the Board’s claim
`construction.
`It contemplates “distribution of the entire
`data,” not merely specific pieces.
`Id. at col. 7 l. 65—col. 8
`l. 2. And though it also describes the system separately
`storing pieces of data, it specifies that those disclosures
`relate to particular embodiments of the claimed invention
`and never disclaims whole-file storage. See id. at col. 2
`1. 55—61 (“In another embodiment the data in the system
`is
`divided
`into
`data
`subsets,
`and .
`.
`. stored
`.”
`.
`.
`in .
`. cells .
`.
`(emphasis added».
`The prosecution
`history contains no contrary statements.
`
`AC asserts that
`
`the Board’s construction conflicts
`
`with the invention’s purpose and that the specification
`compels a contrary construction. But it crafts that argu-
`ment by ignoring—often through strategic use of ellip-
`ses—the disclosures noted above and by relying on an
`expert whose testimony the Board elsewhere character-
`ized as “conclusory.”
`See Final Written Decision, at 7;
`Appellant’s Br. 31, 37. Having broadly drafted its claims
`to encompass both systems that copy and store individual
`pieces and those that copy and store multiple or all pieces
`of a file, AC cannot now read features from preferred
`embodiments into its claims to bolster its validity argu-
`ments.
`See In re Van Geuns, 988 F.2d 1181, 1184
`(Fed. Cir. 1993) (“[L]imitations are not to be read into the
`claims from the specification”).
`For all of the above
`reasons, we see no error in the Board’s claim interpreta-
`tion.
`
`III
`
`AC also challenges the Board’s ultimate findings of
`anticipation and conclusions of obviousness. Specifically,
`
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`AC disputes the Board’s finding that Rabinovich discloses
`copying “independently of an access of the computer unit,”
`as recited by the anticipated independent claims, and the
`Board’s conclusion that it would have been obvious to
`
`connect Rabinovich’s computer unit and data storage
`units over a wireless network, as recited by claims 2, 4,
`and 6. We address these arguments in turn.
`
`A
`
`We review the Board’s finding that Rabinovich dis-
`closes copying “independently of an access of the computer
`unit,” a question of fact, for substantial evidence. See
`In re Gleave, 560 F.3d 1331, 1334—35 (Fed. Cir. 2009).
`The Board found that Rabinovich discloses this limitation
`
`because neither cnt(s, x3) nor cnt(E, xs) requires access of
`Rabinovich’s host, the element Amazon identified as the
`claimed computer unit. See Final Written Decision, at 32—
`37. Substantial evidence supports the Board’s finding.
`Specifically, Rabinovich defines cnt(s, x9) as the access
`count for a particular file by the client, not the host, and it
`defines cnt(E, XS) as the number of appearances of an
`entity (E) (which may be a host) along a request’s path
`from the client to a requested file. J .A. 577. Dr. David
`Ratner confirmed this understanding of cnt(E, X3) in his
`testimony, where he further explained that cnt(E, xs)
`simply measures “possible future demand for a replica of
`[file] x.” J .A. 432. The Board specifically credited this
`unchallenged testimony.
`See Final Written Decision,
`at 34—35.
`
`AC nonetheless argues that the Board should have
`accepted its understanding of Rabinovich, and it further
`argues that without explicit disclosure affirming that
`Rabinovich does not depend on an access of the host,
`Rabinovich cannot disclose independent access.
`AC’s
`contentions lack merit. The first misunderstands our role
`on appeal. We evaluate whether substantial evidence
`supports
`the Board,
`but
`“[w]e may
`not
`re-
`
`

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`Inc.,
`In re Warsaw Orthopedic,
`. evidence.”
`.
`weigh .
`832 F.3d 1327, 1333 (Fed. Cir. 2016). The second misap-
`prehends the law. Contrary to AC’s suggestion, a refer-
`ence need not state a feature’s absence in order to disclose
`
`a negative limitation. See, e.g., Sud-Chemie, Inc. v. Mul-
`tisorb Techs,
`Inc., 554 F.3d 1001, 1004—05 (Fed. Cir.
`2009) (affirming finding that reference disclosed “uncoat-
`ed” film where it did not describe the film as coated and
`
`did not suggest necessity of coatings).
`
`B
`
`We review the Board’s ultimate determination that
`
`claims 2, 4, and 6 would have been obvious de novo, and
`we review its underlying factual findings for substantial
`evidence. See Harmonic Inc. v. Avid Tech., Inc., 815 F.3d
`1356, 1363 (Fed. Cir. 2016).
`
`AC asserts that per the Board’s constructions and
`Amazon’s petition, Rabinovich’s data storage units and its
`computer unit must both serve as hosts. Continuing from
`that premise,
`it contends that only “ad hoc” networks
`permit hosts to directly connect to one another and that
`Rabinovich could not operate with an ad hoc network. As
`a result, AC claims, the Board erred in finding that it
`would have been obvious to connect Rabinovich’s system
`over a wireless network.
`
`AC assumes that the phrase “connected over a wire-
`less network” requires a direct wireless connection. But
`the Board specifically found the claims “broad enough to
`encompass a connection through a wireless hub.” Rehear-
`ing Decision, at 8. AC fails to explain how or why the
`Board erred in doing so, and we see no error in the
`Board’s construction.2 Consequently, we affirm.
`
`Though AC does not directly challenge the Board’s
`2
`construction, we note that it finds support in the claims,
`
`

`

`, Casez18-1433
`
`Document: 44
`
`Page: 15
`
`Filed: 01/09/2019
`
`AC TECHS. V. AMAZON.COM
`
`15
`
`CONCLUSION
`
`We have reviewed the parties’ remaining arguments
`and find them unpersuasive. Accordingly, we affirm the
`Board.
`
`AFFIRMED
`
`COSTS
`
`Costs to Appellees.
`
`which do not recite “direct” or “ad hoc” network connec-
`
`the specification, which describes the claimed
`tions,
`wireless connections in only the broadest
`terms,
`see
`’680 patent col. 3 11. 41—49, and in the prosecution history,
`in which the examiner specifically recognized that “wire-
`less networks were notoriously well known in the art and
`commonly used at the time of the invention,” see Rehear-
`ing Decision, at 6.
`
`

`

`Case:18-1433
`
`Document: 45
`
`Page:1
`
`Filed201/09/2019
`
`63111121] étates (11301111 of gppealg
`
`for the jfeheral QEirtut’t
`
`AC TECHNOLOGIES S.A.,
`
`Appellant
`
`V.
`
`AMAZON.COM, IN C., BLIZZARD
`ENTERTAINMENT, INC.,
`
`Appellees
`
`18-1433
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2015-
`01802.
`
`JUDGMENT
`
`THIS CAUSE having been considered, it is
`
`ORDERED AND ADJUDGEDZ
`
`AFFIRMED
`
`ENTERED BY ORDER OF THE COURT
`
`

`

`Case218-1433
`
`Document: 45
`
`Page:2
`
`Filed:O1/09/2019
`
`Januafl 9, 20.19
`
`/s/ Péter R. Marksteiner
`Peter R. Marksteiner
`
`Clerk of Court
`
`