Trials@uspto.gov
`571-272-7822
`
`
`Paper No. 11
`
`Entered: November 17, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ALARM.COM INC.,
`Petitioner,
`
`v.
`
`VIVINT, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-01080
`Patent 6,147,601
`____________
`
`
`
`Before MICHAEL R. ZECHER, JAMES B. ARPIN, and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`BOUDREAU, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
`
`
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`

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`IPR2016-01080
`Patent 6,147,601
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`
`I.
`INTRODUCTION
`On May 20, 2016, Alarm.com Incorporated (“Alarm.com”) filed a
`Petition (Paper 1, “Pet.”) requesting an inter partes review of claims 3, 16,
`24, 32, 42, and 43 (“the challenged claims”) of U.S. Patent No. 6,147,601
`(Ex. 1301, “the ’601 patent”). Pet. 1. Vivint, Incorporated (“Vivint”) filed a
`Preliminary Response. Paper 10 (“Prelim. Resp.”).
`Based on the particular circumstances of this case, we exercise our
`discretion under 37 C.F.R. § 42.108 and do not institute an inter
`partes review of the challenged claims.
`II. BACKGROUND
`A. Related Matters
`The ’601 patent is the subject of a district court action between the
`parties titled Vivint, Inc. v. Alarm.com Inc., No. 2:15-cv-00392-CW-BCW
`(D. Utah 2015), filed June 2, 2015. Pet. 1; Paper 8, 2. In addition to the
`present Petition, Alarm.com has filed three other petitions challenging
`various claims of the ’601 patent. Case IPR2015-02004 (Paper 1) (“the
`’2004 petition” or “’2004 Pet.”); Case IPR2016-00116 (Paper 1) (“the ’116
`petition” or “’116 Pet.”); Case IPR2016-00155 (Paper 1) (“the ’155 petition”
`or “’155 Pet.”).
`Alarm.com also has filed fourteen other petitions, challenging certain
`claims of the following other patents owned by Vivint: (1) U.S. Patent No.
`6,462,654 B1 (Cases IPR2015-02003, IPR2016-00161, IPR2016-01110, and
`IPR2016-01124); (2) U.S. Patent No. 6,535,123 B2 (Cases IPR2015-01995,
`IPR2016-00173, and IPR2016-01126); (3) U.S. Patent No. 6,717,513 B1
`(Cases IPR2015-01997, IPR2016-00129, and IPR2016-01091); (4) U.S.
`Patent No. 6,924,727 B2 (Cases IPR2015-01977 and IPR2015-02008); and
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`(5) U.S. Patent No. 7,884,713 B1 (Cases IPR2015-01965 and IPR2015-
`01967). Pet. 2; Paper 8, 1–2.
`B.
`Illustrative Claims
`Of the challenged claims, only claims 42 and 43 are independent.
`Challenged claim 3 depends from unchallenged claim 2, which in turn
`depends from unchallenged independent claim 1. Challenged claim 16
`likewise depends from unchallenged independent claim 1. Challenged claim
`24 depends from unchallenged claim 23, which in turn depends from
`unchallenged independent claim 22. Challenged claim 32 depends from
`unchallenged claim 30, which depends from unchallenged claim 26, which
`depends from independent claim 22.
`Unchallenged claims 1 and 2 and challenged claims 3 and 16 are
`illustrative and are reproduced below:
`1. A method of monitoring remote equipment comprising the
`steps of:
`a) determining a state of at least one parameter of at least one
`piece of the remote equipment;
`b) communicating a message indicative of the state from the
`piece of remote equipment to a computer server as an
`incoming message;
`c) enabling a user to remotely configure or modify a user-
`defined message profile containing outgoing message
`routing instructions, the user-defined message profile being
`storable on the computer server;
`d) determining whether an incoming message is an incoming
`exception message indicative of improper operation of the
`piece of remote equipment;
`e) if it is determined in step d) that an incoming message is an
`incoming exception message, forwarding at least one
`outgoing exception message based on the incoming message
`
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`to at least one user-defined communication device
`specifiable in the user-defined message profile,
`wherein the user can remotely configure or modify the user-
`defined message profile by remotely accessing the computer
`server.
`2. A method according to claim 1, wherein said step b) further
`comprises the step of communicating a plurality of incoming
`messages to the computer server via one of a plurality of
`different communication media.
`3. A method according to claim 2, further comprising the step
`of normalizing the incoming messages into a uniform format to
`create normalized messages, wherein the outgoing exception
`messages are generated based on the normalized messages.
`16. A method according to claim 1, wherein the remote
`equipment includes heating, ventilating, and cooling equipment.
`Ex. 1301, 8:51–9:15, 10:16–18.
`C.
`References Relied Upon
`Alarm.com relies on the following references:
`Exhibit
`Reference
`1303 U.S. Patent No. 5,808,907, issued Sept. 15, 1998
`(“Shetty”)
`1304 U.S. Patent No. 6,067,477, issued May 23, 2000
`(“Wewalaarachchi”)
`1305 U.S. Patent No. 6,040,770, issued Mar. 21, 2000
`(filed Sept. 4, 1998) (“Britton”)
`
`Pet. 7–8. Alarm.com also relies on a declaration of V. Thomas Rhyne, III,
`Ph.D., P.E., R.P.A. (Ex. 1306).
`
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`Asserted Grounds of Unpatentability
`D.
`Alarm.com challenges the patentability of the challenged claims on
`the following grounds:
`
`References
`Shetty and Wewalaarachchi
`Shetty, Wewalaarachchi, and Britton
`
`Basis Claim(s) Challenged
`§ 103
`3, 16, 24, 42, and 43
`§ 103
`32
`
`
`Pet. 8.
`
`III. DISCUSSION
`Discretionary Non-Institution
`A.
`Institution of inter partes review is discretionary. See 35 U.S.C.
`§ 314(a); 37 C.F.R. § 42.108. There is no per se rule against a petitioner
`filing a second petition to address a patent claim on which the Board
`previously declined to institute a review. Rather, panels of this Board have
`considered a variety of factors in deciding whether to exercise their
`discretion not to institute review, including, inter alia:
`(1) the finite resources of the Board;
`(2) the requirement under 35 U.S.C. § 316(a)(11) to issue a
`final determination not later than one year after the date on
`which the Director notices institution of review;
`(3) whether the same petitioner previously filed a petition
`directed to the same claims of the same patent;
`(4) whether, at the time of filing of the earlier petition, the
`petitioner knew of the prior art asserted in the later petition
`or should have known of it;1
`
`
`1 See Conopco, Inc. v. Proctor & Gamble Co., Case IPR2014-00506, slip op.
`at 4 (PTAB Dec. 10, 2014) (Paper 25) (informative), and slip op. at 6 (PTAB
`July 7, 2014) (Paper 17); Toyota Motor Corp. v. Cellport Sys., Inc., Case
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`(5) whether, at the time of filing of the later petition, the
`petitioner already received the patent owner’s preliminary
`response to the earlier petition or received the Board’s
`decision on whether to institute review in the earlier
`petition;2
`(6) the length of time that elapsed between the time the
`petitioner learned of the prior art asserted in the later petition
`and the filing of the later petition;
`(7) whether the petitioner provides adequate explanation for the
`time elapsed between the filing dates of multiple petitions
`directed to the same claims of the same patent; and
`(8) whether the same or substantially the same prior art or
`arguments previously were presented to the Office.3
`See LG Electronics Inc. v. Core Wireless Licensing S.A.R.L., Case IPR2016-
`00986, slip op. at 6–7 (PTAB Aug. 22, 2016) (Paper 12) (“LG Elecs.”);
`NVIDIA Corp. v. Samsung Elec. Co., Case IPR2016-00134, slip op. at 6–7
`(PTAB May 4, 2016) (Paper 9); Unified Patents, Inc. v. PersonalWeb
`Techs., LLC, Case IPR2014-00702, slip op. at 7–9 (PTAB July 24, 2014)
`
`
`IPR2015-01423, slip op. at 8 (PTAB Oct. 28, 2015) (Paper 7) (“Toyota
`Motor Corp.”).
`2 See Conopco, Inc. v. Proctor & Gamble Co., Case IPR2014-00628, slip op.
`at 11 (PTAB October 20, 2014) (Paper 21) (discouraging filing of a first
`petition that holds back prior art for use in later attacks against the same
`patent if the first petition is denied); Toyota Motor Corp., slip op. at 8
`(“[T]he opportunity to read Patent Owner’s Preliminary Response in
`IPR2015-00634, prior to filing the Petition here, is unjust.”).
`3 See 35 U.S.C. § 325(d) (“In determining whether to institute or order a
`proceeding under . . . chapter 31 [providing for inter partes review], the
`Director may take into account whether, and reject the petition or request
`because, the same or substantially the same prior art or arguments previously
`were presented to the Office.”).
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`(Paper 13); see also Amendments to the Rules of Practice for Trials Before
`the Patent Trial and Appeal Board, 81 Fed. Reg. 18750, 18759 (Apr. 1,
`2016) (“[T]he current rules provide sufficient flexibility to address the
`unique factual scenarios presented to handle efficiently and fairly related
`proceedings before the Office on a case-by-case basis, and that the Office
`will continue to take into account the interests of justice and fairness to both
`petitioners and patent owners where multiple proceedings involving the
`same patent claims are before the Office.”). These factors guide our
`decision to exercise discretion, but all factors need not be present, and we
`need not give equal weight to each factor in reaching our decision.
`With these factors in mind, and for the reasons that follow, we
`exercise our discretion and do not institute a review based on the instant
`Petition.
`As mentioned above, Alarm.com has previously filed three other
`petitions requesting an inter partes review of claims of the ’601 patent.
`In the ’2004 petition, filed September 30, 2015, Alarm.com
`challenged claims 1–5, 7, 11–15, 17–19, 21–30, 34–36, 38–40, 42, and 43 of
`the ’601 patent as being anticipated by Scadaware;4 claims 6, 10, and 16 as
`being obvious over Scadaware; and claims 8, 9, 20, 26, 30–33, 37, and 41 as
`being obvious over Scadaware, Britton, and Smith.5 ’2004 Pet. 4. In a
`decision denying institution, entered on March 31, 2016, we concluded that
`Alarm.com had not demonstrated a reasonable likelihood that it would
`
`
`4 SCADAWARETM System Design Concepts, Doc. 1010-03
`(Total Engineering Services Team, Inc., New Orleans, La.) (“Scadaware”).
`5 U.S. Patent No. 6,054,920, issued Apr. 25, 2000 (filed Oct. 15, 1996)
`(“Smith”).
`
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`prevail at trial in demonstrating that any challenged claim is unpatentable on
`any of the grounds there presented. Case IPR2015-02004, slip op. at 28
`(PTAB Mar. 31, 2016) (Paper 14).
`In the ’116 petition, filed October 30, 2015, Alarm.com challenged
`claims 1, 2, 4, 6, 10–13, 15–17, 22, 23, 25–27, 29, 33–35, and 38 as being
`obvious over Shetty; claims 1, 2, 4, 6, 7, 10–13, 15, 19, 22, 23, 25–29, and
`33–35 as being obvious over Shetty and Levac;6 claims 5, 8, 9, 20, 21, 30,
`31, 37, 39, 40, and 41 as being obvious over Shetty and Britton and/or over
`Shetty, Levac, and Britton; and claims 14, 17, 18, 36, 38, and 39 as being
`obvious over Shetty and French and/or over Shetty, Levac, and French.
`’116 Pet. 9–10, 27, 38, 49. In a decision on institution entered on May 4,
`2016, we concluded that Alarm.com had demonstrated a reasonable
`likelihood that it would prevail at trial in demonstrating that claims 1, 2, 4–
`15, 17–23, 25–31, and 33–41 are unpatentable on certain of the grounds
`there presented, and we instituted an inter partes review with respect to
`those claims.7 Case IPR2016-00116, slip op. at 45–46 (PTAB May 4, 2016)
`(Paper 14) (“’116 Dec. on Inst.”). With respect to challenged claim 16,
`however, which depends from claim 1 and further recites “wherein the
`remote equipment includes heating, ventilating, and cooling equipment” (Ex.
`1301, 10:16–18), we were not persuaded by Alarm.com’s contentions (see
`
`
`6 U.S. Patent No. 6,034,970, issued Mar. 7, 2000 (filed July 2, 1997)
`(“Levac”).
`7 See 35 U.S.C. § 315(d) (“[D]uring the pendency of an inter partes review,
`if another proceeding or matter involving the patent is before the Office, the
`Director may determine the manner in which the inter partes review or other
`proceeding or matter may proceed, including providing for stay, transfer,
`consolidation, or termination of any such matter or proceeding.”).
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`’116 Pet. 18) that it would have been obvious to apply the teachings of
`Shetty to monitor such equipment, and we did not institute an inter partes
`review as to that claim. ’116 Dec. on Inst. 29–30, 44. Principal briefing in
`Case IPR2016-00116 is already complete, and oral argument, if requested by
`the parties, is currently scheduled for January 31, 2017. Case IPR2016-
`00116, Paper 15 (Scheduling Order) at 6.
`In the ’155 petition, filed November 5, 2015, Alarm.com challenged
`claims 1–3, 22–24, 26, 30, 32, 42, and 43 as being obvious over
`Wewalaarachchi, Honeywell,8 and BACnet9 or, alternatively, over
`Wewalaarachchi, Honeywell, BACnet, and Levac. ’155 Pet. 4, 11–56. In a
`decision denying institution, entered on April 28, 2016, we concluded that
`Alarm.com had not demonstrated a reasonable likelihood that it would
`prevail at trial in demonstrating that any challenged claim is unpatentable on
`any of the grounds there presented. Case IPR2016-00155, slip op. at 16
`(PTAB Apr. 28, 2016) (Paper 14).
`With regard to the third factor listed above, the instant Petition
`represents not only Alarm.com’s fourth petition challenging the ’601 patent,
`but also its third petition specifically challenging each of claims 3, 16, 24,
`32, 42, and 43: Each of Claims 3, 24, 42, and 43 previously was challenged
`in Case IPR2015-02004 as anticipated by Scadaware and in Case IPR2016-
`00155 as obvious over Wewalaarachchi, Honeywell, and BACnet; claim 16
`
`
`8 Honeywell Engineering Manual of Automatic Control for Commercial
`Buildings, Honeywell, Inc. (“Honeywell”).
`9 BACnet®: A Data Communication Protocol for Building Automation and
`Control Networks, ANSI/ASHRAE Standard 135-1995 (including
`ANSI/ASHRAE Addendum 135a-1999), American Society of Heating,
`Refrigerating and Air-Conditioning Engineers, Inc. (“BACnet”).
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`was challenged in Case IPR2015-02004 as being obvious over Scadaware
`and in Case IPR2015-00116 as being obvious over Shetty; and claim 32 was
`challenged in Case IPR2015-02004 as obvious over Scadaware, Britton, and
`Smith and in Case IPR2016-00155 as obvious over Wewalaarachchi,
`Honeywell, and BACnet.
`Turning to the fourth and sixth factors, Alarm.com does not allege
`that the references relied upon in the Petition previously were unknown to it.
`Nor could it, because, as set forth above, Alarm.com previously relied on
`Shetty in Case IPR2016-00116, Wewalaarachchi in Case IPR2016-00155,
`and Britton in both Cases IPR2015-02004 and IPR2016-00116.
`Nevertheless, more than six months passed between Alarm.com’s filing of
`the ’155 petition on November 5, 2015, and its filing of the instant Petition
`on May 20, 2016.
`With respect to the fifth and seventh factors, Alarm.com had already
`received both Vivint’s preliminary responses and our decisions in Cases
`IPR2015-02004, IPR2016-00116, and IPR2016-00155, explaining why its
`earlier challenges to claims 3, 16, 24, 32, 42, and 43 were deficient, before
`filing the instant Petition. In addition, Alarm.com had received Vivint’s
`preliminary responses and our decisions in other cases in which the applied
`Shetty and Britton references were asserted. Thus, the instant Petition is
`essentially a composite response to our decisions in those earlier
`proceedings. Alarm.com also offers no other explanation for the length of
`time that elapsed between the time it learned of the referenced art here
`asserted, i.e., at least November 5, 2015, and the filing date of the instant
`Petition, i.e., May 20, 2016. Because the instant Petition was filed only
`about two weeks prior to the raising of the Section 315(b) bar against further
`
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`challenges to claims 3, 16, 24, 32, 42, and 43 of the ’601 patent, we can
`discern no other motivation apart from the information to be gleaned from
`Vivint’s preliminary responses and our decisions on institution in the related
`cases.
`Finally, with regard to the eighth factor, Vivint contends that
`Alarm.com’s current challenges present the same or substantially the same
`prior art or arguments as those previously presented to the Office. Prelim.
`Resp. 2–3, 6–9; see 35 U.S.C. § 325(d). We agree. In making the
`determination whether Alarm.com’s current challenges present the same or
`substantially the same prior art or arguments as those previously presented to
`the Office, we may consider whether Alarm.com uses information gleaned
`from our earlier decisions to bolster challenges it advanced unsuccessfully.
`See NRT Tech. Corp v. Everi Payments Inc., Case CBM2016-00080, slip op.
`at 10 (PTAB Nov. 10, 2016) (Paper 12) (citing Unilever, Inc. v. Procter &
`Gamble Co., Case IPR2014-00506, slip op. at 8 (PTAB July 7, 2014) (Paper
`17) (informative)). Here, as explained above, Alarm.com simply relies on
`new combinations of previously relied-upon references, based on the
`guidance provided in our previous decisions.
`These facts suggest that at least this latest proceeding is a case of
`undesirable, incremental petitioning, in which a petitioner relies on a patent
`owner’s contentions or a Board decision in an earlier proceeding or
`proceedings involving the same parties, the same patent, and the same
`claims to mount another—indeed, in this case, a third—challenge after an
`earlier, unsuccessful or only partially successful challenge, by fixing
`deficiencies, noted by the Board, that were within the petitioner’s capacity to
`avoid in the earlier petition or petitions. See LG Elecs., slip op. at 11. As
`
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`Vivint points out in its Preliminary Response, the Board repeatedly has
`exercised its discretion to deny petitions where petitioners similarly have
`used prior Board decisions as a roadmap to correct past deficiencies. Prelim.
`Resp. 5–6, 9–10; see also Travelocity.com L.P. v. Cronos Tech., LLC, Case
`CBM2015-00047, slip op. at 13 (PTAB June 15, 2015) (Paper 7)
`(“Moreover, a decision on a petition . . . is not simply part of a feedback
`loop by which a petitioner may perfect its challenges through a subsequent
`filing.”). As the Board explained in Butamax Advanced Biofuels LLC v.
`Gevo, Inc., cited by Vivint (Prelim. Resp. 9–10), “[a]llowing similar, serial
`challenges to the same patent, by the same petitioner, risks harassment of
`patent owners and frustration of Congress’s intent in enacting the Leahy-
`Smith America Invents Act.” Case IPR2014-00581, slip op. at 13 (PTAB
`Oct. 14, 2014) (Paper 8) (citing H.R. Rep. No. 112-98, pt. 1, at 48 (2011)).
`Consequently, with regard to the first and second factors, the
`following discussion from LG Electronics is particularly apt:
`We are concerned about the limited resources of the Board
`and fundamental fairness for both Petitioner and Patent Owner.
`Petitioner cannot expect automatic acceptance of multiple
`petitions for consideration, if they are against the same claims of
`the same patent and filed so long apart that Petitioner received
`the benefit of having studied Patent Owner’s Preliminary
`Response in the first petition or the Board’s decision on whether
`to institute review in the first petition, prior to filing the second
`petition. That is especially so if Petitioner, at the time of filing
`of the first petition was aware of or should have been aware of
`the prior art references applied in the second petition.
`The potential for inequity resulting from a petitioner’s
`filing of serial attacks against the same claims of the same patent,
`while having the opportunity to adjust litigation positions along
`the way based on either the patent owner’s contentions
`responding to prior challenges or the Board’s decision on prior
`
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`challenges, is real and cannot be ignored. This is not to say,
`however, that multiple petitions against the same claims of the
`same patent are never permitted. Rather, each case depends on
`its own facts. We look to and consider, in each case, as we do
`here, what rationale a petitioner offers for filing multiple
`petitions and for the time elapsed between those filings.
`LG Elecs., slip op. at 7–8 (emphasis added); see also Samsung Elec. Co. v.
`Rembrandt Wireless Techs., LP, Case IPR2015-00114, slip op. at 6 (PTAB
`Jan. 28, 2015) (Paper 14) (“[I]t is more efficient for the parties and the
`Board to address a matter once rather than twice.”); ZTE Corp. v.
`ContentGuard Holdings, Inc., Case IPR2013-00454, slip op. at 5–6 (PTAB
`Sept. 25, 2013) (Paper 12) (“The Board is concerned about encouraging,
`unnecessarily, the filing of petitions which are partially inadequate.”). The
`Board’s resources would be more fairly expended on initial petitions, rather
`than on follow-on petitions such as the Petition in this case. This is
`especially apparent when, as here, we are confronted with the fourth
`challenge to a patent and a total of eighteen challenges to six members of a
`family of related patents.
`After weighing the factors identified above, we conclude that those
`factors weigh in favor of denying institution of review based on the instant
`Petition.
`We additionally note that in this case challenged claims 3, 16, 24, and
`32 each depend from other claims that are already subject to inter partes
`review in Case IPR2016-00116, namely claims 1 and 22. Although
`Alarm.com states that those claims are not being challenged in the instant
`Petition (see Pet. 5 n.1), the patentability of those claims necessarily also
`would be in issue if an inter partes review were instituted in this proceeding
`posing a risk of inconsistent or even contrary final decisions in this
`
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`proceeding vis-à-vis Case IPR2016-00116. Although Alarm.com’s
`arguments with respect to those claims are similar in the instant Petition to
`those presented in the ’116 petition, Alarm.com relies on different
`testimonial evidence in support of its arguments in the two petitions. In
`particular, whereas Alarm.com relies on the declaration of Dr. Rhyne in
`support of the instant Petition, Alarm.com relied on a declaration of Arthur
`Zatarain, PE, in the ’116 petition. Indeed, in the Preliminary Response,
`Vivint already has argued that Dr. Rhyne’s and Mr. Zatarain’s Declarations,
`while “substantively the same” (Prelim. Resp. 8–9), contain contradictory
`statements regarding a disputed limitation of each challenged claim (id. at
`30–31). Because of Alarm.com’s reliance on different testimonial evidence,
`the risk of inconsistent decisions here and in Case IPR2016-00116 is
`particularly significant.
`B.
`Conclusion
`For the reasons discussed above, and given the limited resources of
`the Board, we exercise our discretion not to institute review in this
`proceeding. See 35 U.S.C. § 314(a); 37 C.F.R. § 42.108.
`
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that the Petition is denied and no trial or inter partes
`review is instituted for claims 3, 16, 24, 32, 42, or 43 of the ’601 patent on
`any asserted ground.
`
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`IPR2016-01080
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`For PETITIONER:
`
`William H. Mandir
`Brian K. Shelton
`SUGHRUE MION PLLC
`wmandir@sughrue.com
`bshelton@sughrue.com
`
`Roger G. Brooks
`Teena-Ann V. Sankoorikal
`CRAVATH, SWAINE & MOORE LLP
`rgbrooks@cravath.com
`tsankoor@cravath.com
`
`
`
`For PATENT OWNER:
`
`Robert Greene Sterne
`Joseph E. Mutschelknaus
`Jason D. Eisenberg
`Ryan C. Richardson
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`rsterne-PTAB@skgf.com
`jasone-PTAB@skgf.com
`jmutsche-PTAB@skgf.com
`rrichardson-PTAB@skgf.com
`
`
`
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