Trials@uspto.gov
`571-272-7822
`
`
`Paper 17
`Entered: July 8, 2016
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TWILIO INC.,
`Petitioner,
`
`v.
`
`TELESIGN CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2016-00451
`Patent 8,687,038 B2
`____________
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JUSTIN T. ARBES, and
`KIMBERLY McGRAW, Administrative Patent Judges.
`
`McGRAW, Administrative Patent Judge.
`
`
`
`DECISION
`Denial of Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`571-272-7822
`
`
`Paper 17
`Entered: July 8, 2016
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TWILIO INC.,
`Petitioner,
`
`v.
`
`TELESIGN CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2016-00451
`Patent 8,687,038 B2
`____________
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JUSTIN T. ARBES, and
`KIMBERLY McGRAW, Administrative Patent Judges.
`
`McGRAW, Administrative Patent Judge.
`
`
`
`DECISION
`Denial of Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`IPR2016-00451
`Patent 8,687,038 B2
`
`
`I. INTRODUCTION
`
`
`
`Petitioner, Twilio Inc., filed a Petition (Paper 2, “Pet.”) requesting an
`
`inter partes review of claims 1–22 of U.S. Patent No. 8,687,038 B2 (Ex.
`
`1001, “the ’038 patent”). See 35 U.S.C. § 311. Patent Owner, TeleSign
`
`Corp., filed a Preliminary Response (Paper 7 “Prelim. Resp.”). We have
`
`jurisdiction under 35 U.S.C. § 314(a), which provides that an inter partes
`
`review may not be instituted “unless . . . the information presented in the
`
`petition . . . shows that there is a reasonable likelihood that the petitioner
`
`would prevail with respect to at least 1 of the claims challenged in the
`
`petition.”
`
`For the reasons that follow, we do not institute an inter partes review
`
`of the ’038 patent.
`
`A. Related Proceedings
`
`Petitioner identifies the co-pending Petitions for inter partes review in
`
`IPR2016-00360 (US 7,945,034 B2) and IPR2016-00450 (US 8,462,920 B2,
`
`“the ’920 patent”) as related matters. Pet. 2. Patent Owner states that it does
`
`not foresee that the decision with respect to the instant Petition will affect, or
`
`be affected by, these other Petitions. Prelim. Resp. 2. The ’038 patent is a
`
`continuation of the ’920 patent.
`
`The parties also state the ’038 patent is asserted in the following
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`lawsuit: TeleSign Corp. v. Twilio Inc., No. 2:15-cv-03240 (C.D. Cal.). Id.;
`
`Pet. 2.
`
`B. The ’038 Patent (Ex. 1001)
`
`The ’038 patent, entitled “Registration, Verification and Notification
`
`System,” relates generally to a process for verifying the identity of an online
`
`2
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`Patent 8,687,038 B2
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`registrant. Ex. 1001, 1:19–20, 2:19–20. The process uses registration
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`information to notify the registrant of events that are established either by
`
`the registrant or by the business through which the registrant has registered.
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`Id. at 2:20–23. The ’038 patent explains that to prevent fraud or identity
`
`theft, either the business or individual may wish to be alerted to certain
`
`events. Id. at 1:52–54. For example, “a consumer may wish to be notified
`
`every time a withdrawal [of] more than one thousand dollars is requested
`
`from his checking account.” Id. at 1:55–57. “A business may wish to notify
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`a consumer when more than five transactions post to a consumer’s account
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`within twenty-four hours.” Id. at 1:57–60. The ’038 patent explains that
`
`when credit cards or account numbers are stolen, the accounts can be quickly
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`drained of cash or credit over a short period of time. Id. at 1:60–62. This
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`can be avoided by notifying the account owner of these acts or even seeking
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`his or her authorization before permitting such transactions to occur. Id. at
`
`1:62–65. The ’038 patent further states that there are other instances when
`
`notification can be helpful, such as when automatic deposits occur. Id. at
`
`1:66–2:2. Alternatively, there are instances “not financially based in which
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`the notification could benefit both the consumer as well as the business.” Id.
`
`at 2:2–4. “For example, the consumer may want to be alerted to new
`
`information, updated sports scores, etc.” Id. at 2:5–6.
`
`“Upon the occurrence of a previously established notification event,
`
`the registrant is notified by establishing a connection with the registrant,
`
`typically by contacting the registrant through a telephonic connection with
`
`the registrant via at least one registrant telephone number provided by the
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`registrant during the registration process.” Id. at 2:61– 67.
`
`3
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`IPR2016-00451
`Patent 8,687,038 B2
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`C. Claims
`
`Petitioner challenges claims 1 through 22. Claims 1 and 13 are
`
`independent. Claim 1, with brackets added, is reproduced below.
`
`1. A verification and notification process implemented by a
`computing system, the process comprising:
`
`[a] receiving, from a user, information responsive to at least part
`of a form that is presented to the user on a website, the received
`information including an electronic contact address associated
`with the user;
`
`[b] verifying the received electronic contact address, wherein
`verifying the received electronic contact address includes:
`
`establishing a first telephonic connection with the user using
`the received electronic contact address;
`
`communicating a first communicated verification code to the
`user through the first telephonic connection;
`
`receiving a first submitted verification code after it is entered
`by the user via the website; and
`
`verifying the received electronic contact address if the first
`submitted verification code is the same as the first
`communicated verification code;
`
`[c] establishing a notification event associated with the user;
`
`[d] upon detecting an occurrence of the established notification
`event, re-verifying the electronic contact address,
`
`[e] wherein re-verifying the electronic contact address includes:
`
`establishing a second telephonic connection with the user
`using the verified electronic contact address;
`
`communicating a second communicated verification code to
`the user through the second telephonic connection;
`
`receiving a second submitted verification code that is entered
`by the user via the website; and
`
`4
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`IPR2016-00451
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`
` re-verifying the electronic contact address if the second
`submitted verification code is the same as the second
`communicated verification code.
`
`Petitioner states the only substantive difference between claim 1 and
`
`13 is the preamble of claim 13, which recites a “non-transitory computer-
`
`readable storage medium containing instructions for performing” the
`
`claimed elements. Pet. 55. Petitioner asserts the “remaining claim elements
`
`of claim 13 are substantively identical––differering only as a result of claim
`
`type (method vs. Beauregard).” Id. at 56.
`
`
`
`D. Asserted Grounds of Unpatentability
`
`Petitioner argues that the challenged claims are unpatentable based
`
`upon the following grounds:
`
`Reference(s)
`
`Bennett1
`
`Bennett and Thoursie2
`
`
`
`Basis
`
`Challenged Claim(s)
`
`§ 103
`
`1–22
`
`§ 103
`
`1–22
`
`Bennett and Rolfe3
`
`§ 103
`
`6, 11, 17, 21
`
`Bennett, Thoursie, and Rolfe
`
`§ 103
`
`6, 11, 17, 21
`
`
`
`
`
`1 U.S. Patent No. 8,781,975 B2, filed May 23, 2005, issued July 15, 2014
`(Ex. 1005, “Bennett”).
`2 U.S. Patent No. 8,302,175 B2, filed April 20, 2005, issued Oct. 30, 2012
`(Ex. 1008, “Thoursie”).
`3 U.S. Patent Application No. 2003/0221125, published Nov. 27, 2003
`(Ex. 1006, “Rolfe”).
`
`5
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`II. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review proceeding, claim terms in an unexpired
`
`patent are given their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`
`Cuozzo Speed Techs., LLC v. Lee, __ U.S.__, 2016 WL 3369425, at *10–14
`
`(U.S. June 20, 2016). Consistent with the broadest reasonable construction,
`
`absent any special definitions, claim terms are presumed to have their
`
`ordinary and customary meaning, as understood by a person of ordinary skill
`
`in the art, in the context of the entire patent disclosure. See In re Translogic
`
`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special definitions
`
`for claim terms must be set forth with reasonable clarity, deliberateness, and
`
`precision. See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`
`The Board, however, may not “construe claims during IPR so broadly
`
`that its constructions are unreasonable under general claim construction
`
`principles. . . . [T]he protocol of giving claims their broadest reasonable
`
`interpretation . . . does not include giving claims a legally incorrect
`
`interpretation.” Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298
`
`(Fed. Cir. 2015) (citation omitted). Rather, “claims should always be read in
`
`light of the specification and teachings in the underlying patent,” and “[t]he
`
`PTO should also consult the patent’s prosecution history in proceedings in
`
`which the patent has been brought back to the agency for a second review.”
`
`Id. at 1298.
`
`In the analysis that follows, we consider the parties’ proposed claim
`
`constructions to the extent necessary to determine the sufficiency of the
`
`asserted grounds of unpatentability. See Vivid Techs., Inc. v. Am. Sci. &
`
`6
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`Eng'g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (only those terms which are
`
`in controversy need to be construed and only to the extent necessary to
`
`resolve the controversy).
`
`
`
`“notification event”
`
`The term “notification event” is recited in elements [c] and [d] of
`
`independent claims 1 and 13. Specifically, both claims recite “establishing a
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`notification event associated with the user” and “upon detecting an
`
`occurrence of the established notification event, re-verifying the electronic
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`contact address.”
`
`Petitioner, relying upon the testimony of its declarant, Michael
`
`Shamos, Ph.D., asserts that the broadest reasonable interpretation of
`
`“notification event” is “an event that results in the user being contacted
`
`either for re-verification or for notification that the event occurred.” Pet. 9
`
`(citing Ex. 1002 ¶¶ 23–29). Patent Owner responds that Petitioner’s claim
`
`interpretation reads “notification” out of the “notification event” claim
`
`limitations and is divorced from and inconsistent with the Specification of
`
`the ’038 patent. See Prelim. Resp. 5. Patent Owner contends “notification
`
`event” as recited in claims 1 and 13 should be construed as “an event that
`
`results in the user being notified that the event occurred.” Id. at 12.
`
`We agree with Patent Owner. Although claim terms must be given
`
`their broadest reasonable interpretation, the interpretation must still be
`
`reasonable. Microsoft, 789 F.3d at 1298. “A construction that is
`
`‘unreasonably broad’ and which does not ‘reasonably reflect the plain
`
`language and disclosure’ will not pass muster.” Id. (citation omitted). Here,
`
`the claim recites establishing a “notification event,” not merely an “event,”
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`7
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`and identifying an “occurrence” of the “established notification event.” If,
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`as Petitioner urges, a “notification event” does not require notification that
`
`the event occurred, then the word “notification” would be superfluous. See
`
`Merck & Co., Inc. v. Teva Pharmaceuticals USA, Inc., 395 F.3d 1364, 1372
`
`(Fed. Cir. 2005 (rejecting a proposed claim construction that would render
`
`claim terms superfluous); Elekta Instrument S.A. v. O.U.R. Sci. Int'l,
`
`Inc., 214 F.3d 1302, 1307 (Fed. Cir. 2000) (construing claim to avoid
`
`rendering the 30 degree claim limitation superfluous); Gen. Am. Transp.
`
`Corp. v. Cryo–Trans, Inc., 93 F.3d 766, 770 (Fed. Cir. 1996) (rejecting the
`
`district court’s claim construction because it rendered superfluous the claim
`
`requirement for openings adjacent to the end walls). The term “notification”
`
`in “notification event” has meaning and, given how the term is used in
`
`claims 1 and 13, we agree with Patent Owner that it requires a “notification
`
`event” to be an event that results in the user being notified that the event
`
`occurred. See, e.g., claims 1 (reciting establishing the “notification event”
`
`and “detecting an occurrence of the established notification event”), 13
`
`(same); Ex. 1001, Abstract (“Notification events are established, and the
`
`registrant is notified of the occurrence of a previously established
`
`notification event . . . .”), 2:61–67 (“Upon the occurrence of a previously
`
`established notification event, the registrant is notified . . . .”).
`
`Petitioner argues that the Specification of the ’038 patent uses the
`
`term “notification event” broadly. Pet. 9. For example, Petitioner argues
`
`that, according to the Specification, “[n]otification events can be
`
`implemented in ‘a wide variety of scenarios’ including ATM transactions,
`
`credit card transactions, or as parental controls.” Id. at 10 (citing Ex. 1001,
`
`10:66–11:31). Petitioner cites to other disclosures in the ’038 patent,
`
`8
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`arguing that those disclosures show that “[a] notification event may be any
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`transaction,” “notification events may occur when a user requests to access
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`or alter her account,” “a notification event may occur ‘every time a
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`withdrawal [of] more than one thousand dollars is requested from his
`
`checking account, or is charged to his credit card,’” and “[n]otification
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`events may comprise a news event, or even status of credit reports.” Id. at
`
`10 (citing Ex. 1001, 2:53–67, 10:6–11:6, claims 8, 10, 19, 20). Petitioner
`
`also cites to statements made during prosecution of the ’038 patent that
`
`allegedly support construing “notification event” as an event that “may
`
`result in either re-verification or notification.” Id. Specifically, Petitioner
`
`states that during prosecution of the application that issued as the ’920
`
`patent, Patent Owner “argued, ‘an established notification event may include
`
`receiving a request to access an account associated with the [registrant] from
`
`a device that is not associated with the account.” Id. (citing Ex. 1013, 81).
`
`Thus, Petitioner concludes, a notification event does not necessarily result in
`
`notifying the user of the occurrence. Id. (citing Ex. 1002 ¶¶ 23–29, Ex.
`
`1001, 3:23–26, 9:3–6).
`
`We are not persuaded that these statements support a construction of
`
`“notification event” as an event that may result in either re-verification or
`
`notification of the occurrence of the event, as none of the statements indicate
`
`that a user would only be contacted for re-verification after occurrence of the
`
`event (without notification that the event had occurred). Rather, each of the
`
`statements merely describe a type of event without indicating what activity
`
`will occur after the event. For example, the cited statement from the
`
`prosecution history indicates that one type of event is receiving an access
`
`request from a non-associated device, but says nothing about what results
`
`9
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`after the event occurs (e.g., re-verification or notification that the event
`
`occurred). See Ex. 1013, 81.
`
`Petitioner also relies on the testimony of Dr. Shamos, who quotes the
`
`Specification as allegedly stating: “If a previously established notification
`
`event occurs, then the system will notify and/or verify the user.” Ex. 1002
`
`¶ 28 (citing Ex. 1001, 9:3–6). This is incorrect. The cited portion of the
`
`Specification does not recite a “notification event.” Rather, the cited portion
`
`discusses “a previously established event,” not “a previously established
`
`notification event.” Ex. 1001, 9:14–15.
`
`Dr. Shamos also cites the Specification’s teaching that if a user logs
`
`into his account or attempts to make a transaction or modify account
`
`information, “the user may be notified or even required to become telephone
`
`verified.” Ex. 1002 ¶ 28 (citing Ex. 1001, 9:3–6). Dr. Shamos contends the
`
`Specification’s “use of the word ‘or’ indicates that the occurrence of the
`
`particular ‘notification event’ is not necessarily communicated to the user.”
`
`Id. We disagree. The cited sentence states that the “user may be notified or
`
`even required” to become telephone verified. Ex. 1001, 9:3–6. Thus, “or” is
`
`not used by itself, and, regardless, the cited sentence does not use the term
`
`“notification event” that is used in claims 1 and 13.
`
`A construction of “notification event” as “an event that results in the
`
`user being notified that the event occurred” is consistent with the
`
`Specification of the ’038 patent. See, e.g., Ex. 1001, Abstract (“Notification
`
`events are established, and the registrant is notified of the occurrence of a
`
`previously established notification event . . . .”), 1:23–26 (“The present
`
`invention also relates to a process for notifying registrants of predetermined
`
`events using information obtained during the registration process.”), 1:54–56
`
`10
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`(“For example, a consumer may wish to be notified every time a withdrawal
`
`[of] more than one thousand dollars is requested . . . .”), 2:61–63 (“Upon the
`
`occurrence of a previously established notification event, the registrant is
`
`notified . . . . ),
`
`For the above reasons, we construe a “notification event” as “an event
`
`that results in the user being notified that the event occurred.”4 For purposes
`
`of this Decision, no express construction of any additional claim term is
`
`necessary.
`
`
`
`B. Priority Date
`
`The ’038 patent issued from U.S. Patent Application No. 13/915,589,
`
`filed on June 11, 2013, which was filed as a continuation of U.S. Patent
`
`Application No. 11/538,989 (“the parent ’989 application5”), filed on
`
`October 5, 2006, which was filed as a continuation-in-part application of
`
`U.S. Patent Application No. 11/034,421 (“the ’421 application”), filed on
`
`January 11, 2005. Petitioner argues the challenged claims can only be given
`
`a priority date of October 5, 2006, the filing date of the parent ’989
`
`application, because the earlier filed ’421 application lacks sufficient written
`
`description for the claims of the ’038 patent.6 Pet. 7–9.
`
`
`
`4 In a concurrently issued decision denying institution of an inter partes
`review in Case IPR2016-00450, we interpret “notification event” in the
`claims of the ’920 patent in a similar manner, the only difference being that
`the claims of the ’920 patent refer to a “registrant,” whereas the claims of the
`’038 patent refer to a “user.”
`5 The parent ’989 application issued as the ’920 patent.
`6 Petitioner states Bennett has a filing date after January 11, 2005 but before
`October 5, 2006. Pet. 10–11.
`
`11
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`Because we deny institution of inter partes review for the reasons
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`explained below, we need not and do not reach the issue of whether the
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`challenged claims of the ’038 patent are entitled to a priority date earlier
`
`than October 5, 2006. For purposes of this Decision, we assume, without
`
`deciding, that Bennett is available as prior art.
`
`
`C. Obviousness of Claims 1–22 over Bennett or
`over Bennett and Thoursie
`
`Petitioner contends independent claims 1 and 13 are unpatentable
`
`
`
`under 35 U.S.C. § 103(a) as obvious over Bennett or alternatively over the
`
`combination of Bennett and Thoursie. Pet. 4, 13–34, 51–56. To support its
`
`contention that claim 1 is unpatentable, Petitioner provides explanations as
`
`to how Bennett or Bennett and Thoursie allegedly teach the limitations of
`
`claim 1. Id. Petitioner also relies upon the testimony of Dr. Shamos. Ex.
`
`1002.
`
`Both asserted grounds of unpatentability rely upon Bennett as
`
`teaching the “notification event” of independent claim 1. See Pet. 18–23,
`
`54. Thus, a dispositive issue is whether Petitioner has shown sufficiently
`
`that Bennett teaches this limitation.
`
`Bennett, entitled “System and Method of Fraud Reduction,” is
`
`directed to systems that authenticate a user using a “two-factor
`
`authentication” process. See Ex. 1005, Abstract, 2:47–3:16, Figs. 2, 3. For
`
`example, Bennett teaches that during the authentication process, the user
`
`provides “channel” information, such as a telephone number. See id. at
`
`2:58–66, 14:46–56. The system establishes a telephone connection (the
`
`second channel) with the phone number and sends a code to the user; the
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`12
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`user then enters the code into the website (the first channel) to complete the
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`transaction. Id. at 2:53–3:16, 15:8–50. Bennett teaches that the user may be
`
`required to go through the authentication process for certain transactions,
`
`such as when the user is accessing the system from a different device than
`
`what was used in the past (id. at 18:4–53) or for “each and every
`
`transaction” (id. at 11:44–45). Examples of transactions that may require
`
`authentication include opening or logging into an account. Id. at 12:64–
`
`13:23. Bennett teaches decision making module 115 having decision engine
`
`108 that decides whether a particular transaction requires the two channel
`
`authentication process. See id., Fig. 2, 11:33–13:23, 16:3–13.
`
`Petitioner argues that Bennett teaches “notification events,” as recited
`
`in claim 1, because Bennett teaches events that can result in the re-
`
`verification of the user. See, e.g., Pet. 19 (“Bennett teaches that all attempts
`
`to access an account are subjected to reverification”), 20 (“Bennett expressly
`
`teaches establishing rules to determine whether to require subsequent two-
`
`factor authentication based on the user logging in from a different device
`
`than she had used in the past”), 20 (stating “any rule in Bennett’s decision
`
`engine corresponds to the claimed limitation” because the engine decides
`
`“whether a return user must be re-verified”).
`
`Petitioner also argues that if Bennett does not expressly teach
`
`configuring the rules in Bennett’s decision making module to correspond to
`
`the claimed notification event associated with a user, it would have been
`
`obvious to modify Bennett to do so “because the purpose of Bennett’s
`
`decision engine is to determine whether to require a subsequent two-factor
`
`authentication for a particular user during a particular transaction.” Id. at 21
`
`(citing Ex. 1005, 11:58–60, 12:33–41, 14:9–36; Ex. 1002 ¶¶ 117–120).
`
`13
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`Notably, Petitioner does not argue that Bennett teaches notifying the
`
`user that the notification event occurred. Rather, Petitioner asserts, in
`
`accordance with its proposed interpretation of “notification event” as
`
`allowing for re-verification or notification that the event occurred, that the
`
`notification event in Bennett is an event that results in the subsequent
`
`two-factor authentication (reverification) of the user.
`
`As stated above, we construe a “notification event” as an event that
`
`results in the user being notified that the event occurred. Petitioner has not
`
`provided evidence or argument that Bennett teaches “establishing a
`
`notification event associated with the user” or “detecting an occurrence of
`
`the established notification event,” where the notification event is an event
`
`that results in the user being notified that the event occurred. See Prelim.
`
`Resp. 29. Accordingly, we determine Petitioner has not shown sufficiently
`
`that Bennett teaches all of the limitations of independent claim 1.
`
`With respect to the limitations of claim 13, other than the preamble,
`
`Petitioner states Bennett, or Bennett and Thoursie, render claim 13 obvious
`
`“for the reasons discussed” with respect to claim 1. Pet. 52–56.
`
`Accordingly, for the same reasons discussed above in connection with claim
`
`1, we determine Petitioner has not shown sufficiently that Bennett teaches
`
`all of the limitations of independent claim 13.
`
`As such, we are not persuaded that Petitioner has established a
`
`reasonable likelihood that Petitioner would prevail in its challenges to
`
`independent claims 1 and 13 or to dependent claims 2–12 and 14–22.
`
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`14
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`D. Remaining Grounds
`
`Petitioner’s remaining grounds challenge claims 6, 11, 17, 21, which
`
`depend from either claim 1 or claim 13. See Pet. 39–41, 47–49, 58–59. For
`
`the reasons explained above regarding claims 1 and 13, we are not persuaded
`
`that Petitioner has established a reasonable likelihood of prevailing with
`
`respect to these grounds as well.
`
`
`
`III. CONCLUSION
`
`For the foregoing reasons, we determine that the information
`
`presented in the Petition does not show that there is a reasonable likelihood
`
`that Petitioner would prevail at trial with respect to at least one claim of the
`
`’038 patent based on any ground presented in the Petition. On this record,
`
`we deny the Petition for inter partes review of claims 1–22 of U.S. Patent
`
`No. 8,687,038 B2.
`
`Accordingly, it is
`
`ORDER
`
`ORDERED that the Petition for inter partes review of U.S. Patent
`
`No. 8,687,038 B2 is denied as to all challenged claims, and no trial is
`
`
`
`instituted.
`
`
`
`15
`
`
`
`IPR2016-00451
`Patent 8,687,038 B2
`
`
`PETITIONER:
`
`Wayne Stacy
`wstacy@cooley.com
`
`Mikaela Stone
`zTwilioIPR@cooley.com
`
`Britton Davis
`bdavis@cooley.com
`
`PATENT OWNER:
`
`Tawni Wilhelm
`telesignipr@shb.com
`
`Elena S.K. McFarland
`emcfarland@shb.com
`
`Jesse Camacho
`jcamacho@shb.com
`
`Amy Foust
`afoust@shb.com
`
`
`16
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