Paper No. 8
`Trials@uspto.gov
`Entered: May 1, 2017
`571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DEPARTMENT OF JUSTICE,
`Petitioner,
`
`v.
`
`ENVISIONIT, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00183
`Patent 7,693,938 B2
`____________
`
`
`
`Before BRYAN F. MOORE, LYNNE E. PETTIGREW, and
`DAVID C. MCKONE, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`Trials@uspto.gov
`Entered: May 1, 2017
`571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DEPARTMENT OF JUSTICE,
`Petitioner,
`
`v.
`
`ENVISIONIT, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00183
`Patent 7,693,938 B2
`____________
`
`
`
`Before BRYAN F. MOORE, LYNNE E. PETTIGREW, and
`DAVID C. MCKONE, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`IPR2017-00183
`Patent 7,693,938 B2
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`I. INTRODUCTION
`
`A. Background
`The Department of Justice (“Petitioner”) filed a Petition (Paper 2,
`“Pet.”) to institute an inter partes review of claims 1, 11–13, 42, 47, and 57
`of U.S. Patent No. 7,693,938 B2 (Ex. 1001, “the ’938 patent”). EnvisionIT,
`LLC (“Patent Owner”) filed a Preliminary Response (Paper 7, “Prelim.
`Resp.”). Upon consideration of the Petition and Preliminary Response, we
`conclude, under 35 U.S.C. § 314(a), that Petitioner has not established a
`reasonable likelihood that it would prevail with respect to any of the
`challenged claims. Accordingly, we decline to institute an inter partes
`review of claims 1, 11–13, 42, 47, and 57 of the ’938 patent.
`
`B. Related Matter
`The parties indicate that the ’938 patent has been asserted in CellCast
`Technologies, LLC v. United States, Case No. 1:15-cv-01307 (Fed. Cl.)
`(“CellCast Litigation”). Pet. 5; Paper 4, 2.
`
`C. Evidence Relied Upon
`Petitioner relies on the following prior art:
`David Gundlegård, Automotive Telematics Services based on Cell
`Broadcast (May 8, 2003) (Master’s Thesis, Linköping University,
`Norrköping, Swed.) (Ex. 1013, “Gundlegård”);
`U.S. Publication No. US 2002/0184346 A1, published Dec. 5, 2002
`(Ex. 1014, “Mani I”);
`U.S. Publication No. US 2002/0188725 A1, published Dec. 12, 2002
`(Ex. 1015, “Mani II”);
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`In re Amendment of Part 73, Subpart G, of the Commission’s Rules
`Regarding the Emergency Broadcast System, Report and Order and Further
`Notice of Proposed Rule Making, FCC Report No. 94-288 (Dec. 9, 1994)
`(Ex. 1016, “FCC Report”);
`U.S. Patent No. 6,816,878 B1, issued Nov. 9, 2004, filed Feb. 11,
`2000 (Ex. 1018, “Zimmers”);
`3rd Generation Partnership Project (“3GPP”), Technical Specification
`Group Terminals; Technical realization of Cell Broadcast Service (CBS)
`(Release 4), 3GPP TS 23.041 V4.2.0 (Dec. 2001) (Ex. 1019, “3GPP
`Standard”); and
`Ravi S. Sandhu & Pierangela Samarati, Access Control: Principles
`and Practice, VOL. 32 NO. 9 IEEE COMMUNICATIONS MAGAZINE 40–48
`(Sept. 1994) (Ex. 1020, “Sandhu”).
`Petitioner also relies on the Declaration of Randall A. Snyder
`(Ex. 1011, “Snyder Decl.”).
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`D. The Asserted Grounds
`Petitioner asserts the following grounds of unpatentability (Pet. 8–9):
`Reference(s)
`Basis
`Claim(s) Challenged
`Gundlegård, 3GPP Standard,
`1, 11–13, 42, 47, and
`Zimmers, and Sandhu,
`57
`
`§ 103(a)
`
`Mani I, Mani II, 3GPP Standard, and
`Sandhu
`
`§ 103(a) or
`102(b)
`
`1, 11–13, 42, 47, and
`57
`
`FCC Report
`
`§ 102(b)
`
`1, 11–13, 42, 47, and
`57
`
`E. The ’938 Patent
`The ’938 patent relates to admission control for message broadcast
`systems. Ex. 1001, 1:18–20. Figure 1, reproduced below, illustrates an
`example:
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`Figure 1 is a functional block diagram of public service message location
`broadcast system (“PLBS”) 100. Id. at 3:9–11, 5:29–30.
`One or more broadcast agent devices 104 are connected to public
`service location broadcast service bureau (“service bureau” or “PLBS-SB”)
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`102. Id. at 5:37–39. Broadcast agent device 104 provides cell@lert display
`106 to a broadcast agent, who inputs a message and defines a geographic
`target area for delivery of the message. Id. at 5:39–43. Service bureau 102
`also is connected to one or more local carrier networks 112A, 112B, which
`can include cellular carrier networks, wireline networks, satellite networks,
`and cable television networks. Id. at 6:17–25. Local carrier network 112A
`can include Cell Broadcast Center (“CBC”) 114A that receives broadcast
`messages and local delivery instructions from service bureau 102. Id. at
`6:25–29.
`Service bureau 102 ensures the authenticity of the broadcast messages
`and the authority of the senders to create the messages. Id. at 6:50–52. “The
`signal from the Broadcast Agent Terminal 104, for example, at a police
`station, to the PLBS-SB 102, would only indicate the geographical area to be
`covered, plus the message. PLBS-SB 102 then sends the broadcast request
`signal to the Carrier Broadcast Center 114 at the office of each local carrier
`concerned.” Id. at 6:54–59.
`Claim 1, reproduced below, is illustrative of the invention:
`1.
`A message broadcasting system providing a
`broadcast message to a broadcast target area, the system
`comprising:
`a broadcast request interface configured for receiving a
`broadcast message record having a broadcast
`message, a defined broadcast target area, and a
`broadcast message originator identifier;
`a broadcast admission control module configured for
`receiving the broadcast message record, validating
`the broadcast message record as a function [sic] one
`or more of the broadcast message originator
`identifier, the broadcast target area, and a broadcast
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`parameter
`network
`transmission
`message
`associated with a broadcast transmission network
`adapted for broadcasting the message to at least a
`portion of the broadcast target area, said broadcast
`admission control module configured for generating
`a validated broadcast message record as a function
`of the validating; and;
`a broadcast message distributor module configured for
`receiving the validated broadcast message record
`and transmitting the broadcast message and the
`broadcast target area, or a part thereof, to an output
`interface configured for distributing the broadcast
`message to at least a portion of the broadcast target
`area.
`
`
`
`II. ANALYSIS
`Real Party in Interest
`A.
`According to Patent Owner, its exclusive licensee, CellCast
`Technologies, LLC, sued Petitioner for infringement of the ’938 patent in
`the United States Court of Federal Claims based, in part, on development
`work performed by International Business Machines Corporation (“IBM”).
`Prelim. Resp. 5. According to a Motion to Notice Third Party filed by
`Petitioner in the CellCast Litigation (Ex. 2002, 3), the contract between
`Petitioner and IBM regarding the development work included Federal
`Acquisition Regulation (FAR) Clause 52.227-3, reproduced below:
`Patent Indemnity
`(a) The Contractor shall indemnify the Government and its
`officers, agents, and employees against liability, including costs,
`for infringement of any United States patent (except a patent
`issued upon an application that is now or may hereafter be
`withheld from issue pursuant to a Secrecy Order under 35 U.S.C.
`181) arising out of the manufacture or delivery of supplies, the
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`the construction, alteration,
`performance of services, or
`modification, or repair of real property (hereinafter referred to as
`construction work) under this contract, or out of the use or
`disposal by or for the account of the Government of such supplies
`or construction work.
`(b) This indemnity shall not apply unless the Contractor shall
`have been informed as soon as practicable by the Government of
`the suit or action alleging such infringement and shall have been
`given such opportunity as is afforded by applicable laws, rules,
`or regulations to participate in its defense. . . .
`48 C.F.R. § 52.227-3 (Apr. 1984). Pursuant to that clause, Petitioner noticed
`IBM of the CellCast Litigation. Ex. 2002. After being noticed, IBM
`intervened in the CellCast Litigation. Pet. 2; Prelim. Resp. 6; Ex. 2003.
`A petition for inter partes review may be considered only if, among
`other requirements, “the petition identifies all real parties in interest.”
`35 U.S.C. § 312(a)(2). According to the Trial Practice Guide, “[w]hether a
`party who is not a named participant in a given proceeding nonetheless
`constitutes a ‘real party-in-interest’ or ‘privy’ to that proceeding is a highly
`fact-dependent question.” 77 Fed. Reg. 48,756, 48,759 (Aug. 14, 2012).
`The Trial Practice Guide provides guidance regarding the factors we
`consider in determining whether a party is a real party in interest. For
`example, “[a] common consideration is whether the non-party exercised or
`could have exercised control over a party’s participation in a proceeding.”
`77 Fed. Reg. 48,756, 48,759 (Aug. 14, 2012). Other considerations may
`include whether the non-party is funding or directing the proceeding. Id. at
`48,760.
`Patent Owner argues that IBM is a real party in interest in this
`proceeding by virtue of the indemnity clause reproduced above. Prelim.
`Resp. 7–9. Anticipating this argument, Petitioner points out that previous
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`panels of the Board have ruled that the mere existence of an indemnification
`agreement does not establish that an indemnitor is a real party in interest.
`Pet. 3 (citing, inter alia, Mercedes-Benz USA, LLC v. Proximity Monitoring
`Innovations LLC, Case No. IPR2015-00397, slip. op. at 9 (PTAB July 17,
`2015) (Paper 18)). Likewise, as Petitioner notes (Pet. 3), a non-party is not
`necessarily a real party in interest by virtue of its status as a co-defendant or
`co-member of a joint defense group with a petitioner. See Trial Practice
`Guide, 77 Fed. Reg. at 48,760. Petitioner then represents the following:
`IBM has not collaborated with Petitioner in the preparation of the
`Petition;
`IBM has not funded or paid the filing fees for the Petition; and
`Petitioner did not share a draft of the Petition with IBM.
`Pet. 4. Patent Owner does not offer evidence contradicting these
`representations.
`According to Patent Owner, however, “[t]he relevant issue is not
`merely whether the existence of an indemnification agreement allows IBM
`to exercise control over the Petitioner’s participation in this proceeding but
`whether the terms of the indemnification agreement allow IBM to exercise
`control over the Petitioner’s participation in this proceeding.” Prelim.
`Resp. 8. Patent Owner argues that because the indemnity clause in this case
`gives IBM an opportunity to participate in the defense of any suit or action
`alleging patent infringement, IBM could have exercised control over
`Petitioner’s participation in this proceeding, even if it did not actually do so.
`Id. at 7–8.
`We are not persuaded by Patent Owner. We generally accept a
`petitioner’s identification of real parties in interest at the time of filing the
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`petition. Petitioner represents that IBM has not funded, directed, or
`otherwise controlled the preparation of the Petition in this proceeding.
`Pet. 4. Patent Owner introduces no evidence that reasonably brings into
`question Petitioner’s identification of real parties in interest. Moreover,
`Patent Owner has not shown persuasively that the indemnification clause at
`issue, which gives IBM an “opportunity as is afforded by applicable laws,
`rules, or regulations to participate in its defense,” gives IBM an opportunity
`to direct or control this proceeding.1
`On this record, we are not persuaded that IBM is a real party in
`interest.
`
`B. Prior Art Status of Gundlegård and 3GPP Standard
`Patent Owner contends that Petitioner has failed to establish that
`either Gundlegård or 3GPP Standard was publicly available before the
`priority date of the ’938 patent and, thus, Petitioner has not established that
`either is prior art to the ’938 patent. Prelim. Resp. 21–22.
`
`
`1 This Decision is not at odds with the decision in First Data Corp. v.
`Cardsoft (Assignment for the Benefit of Creditors), LLC, Case IPR2014-
`00715, slip op. at 7–10 (PTAB October 17, 2014) (Paper No. 9), to which
`Patent Owner cites in the Preliminary Response, at 8–9. In First Data, the
`panel considered not only an indemnification agreement that expressly stated
`that the indemnitor “shall have the right at its expense to employ counsel . . .
`to defend against Claims that VeriFone is responsible for . . . and to
`compromise, settle and otherwise dispose of such Claims,” but also
`considered additional evidence of control, such as communications from the
`indemnitor to the petitioner in that proceeding, and the indemnitor paying all
`costs of the petition. IPR2014-00715, slip op. at 7–8.
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`According to the Federal Circuit, “[b]ecause there are many ways in
`which a reference may be disseminated to the interested public, ‘public
`accessibility’ has been called the touchstone in determining whether a
`reference constitutes a ‘printed publication’” under Section 102. Kyocera
`Wireless Corp. v. Int’l Trade Comm’n, 545 F.3d 1340, 1350 (Fed. Cir. 2008)
`(quoting In re Hall, 781 F.2d 897, 898–99 (Fed. Cir. 1986)). A reference is
`publicly accessible “upon a satisfactory showing that such document has
`been disseminated or otherwise made available to the extent that persons
`interested and ordinarily skilled in the subject matter or art exercising
`reasonable diligence, can locate it.” SRI Int’l, Inc. v. Internet Sec. Sys., Inc.,
`511 F.3d 1186, 1194 (Fed. Cir. 2008). We assess public accessibility on a
`case-by-case basis. See Kyocera, 545 F.3d at 1350.
`In instances of references stored in libraries, for example, “competent
`evidence of the general library practice may be relied upon to establish an
`approximate time when a thesis became accessible.” In re Hall, 781 F.2d at
`899. “In these cases, we generally inquire whether the reference was
`sufficiently indexed or cataloged.” Blue Calypso, LLC v. Groupon, Inc.,
`815 F.3d 1331, 1348 (Fed. Cir. 2016); accord Voter Verified, Inc. v. Premier
`Election Solutions, Inc., 698 F.3d 1374, 1380 (Fed. Cir. 2012) (“[I]ndexing
`is a relevant factor in determining accessibility of potential prior art,
`particularly library-based references.”). In Hall, the Federal Circuit found
`sufficient “a declaration from the university librarian which detailed the
`library’s procedures for receiving, cataloging, and shelving of theses and
`attested to the relevant dates that Bayer’s thesis was processed.” 781 F.2d at
`899. In contrast, in SRI International, in the context of a motion for
`summary judgment, a document on an FTP server was not shown to have
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`been sufficiently publicly available, in part, because “the FTP server did not
`contain an index or catalogue or other tools for customary and meaningful
`research.” 511 F.3d at 1196. In another example, theses deposited at a
`library “were not accessible to the public because they had not been either
`cataloged or indexed in a meaningful way.” In re Cronyn, 890 F.2d 1158,
`1161 (Fed. Cir. 1989). In Cronyn, the theses were cataloged in alphabetical
`order, by title, and “the student’s name, which, of course, bears no
`relationship to the subject of the student’s thesis.” Id.
`
`
`1. Petitioner has not shown that Gundlegård was publicly
`accessible
`Gundlegård states on its face that it is a master’s thesis kept at
`Linköping University in Norrköping, Sweden, and is alleged to have been
`made available over the Internet. Thus, to determine a date on which
`Gundlegård was publicly accessible, we look to evidence of the library’s
`cataloging and indexing practices and any search capability of the library’s
`website. See Blue Calypso, 815 F.3d at 1348; Voter Verified, 698 F.3d at
`1380; SRI, 511 F.3d at 1196.
`The Petition does not provide a detailed statement of Petitioner’s
`arguments as to the public accessibility of Gundlegård. Rather, Petitioner
`simply states that each of the references cited in the Petition “is prior art to
`the ’938 Patent under §§102(a) (b), as seen from their respective dates.”
`Pet. 24. The Petition also attaches a Declaration of Amelia Nuss (Ex. 1021),
`but does not reference it. The Nuss Declaration appears to include
`Petitioner’s arguments and evidence to establish the public accessibility of
`Gundlegård. Patent Owner argues that Petitioner’s reliance on the Nuss
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`Declaration without an explanation of its relevance violates 37 C.F.R.
`§ 42.6(a)(3). Prelim. Resp. 23 n.5. We agree. Nevertheless, we also agree
`with Patent Owner that the Nuss Declaration, even if considered, does not
`support a finding that Gundlegård was publicly available.
`According to her Declaration, Ms. Nuss is a law librarian at the
`Justice Management Division of the Department of Justice, rather than a
`staff member of the Linköping University library at which Gundlegård is
`located. Ex. 1021 ¶¶ 1–2. Ms. Nuss testifies that she “was provided with a
`copy of” Gundlegård and was “asked to determine the earliest date that the
`thesis was recorded and made available and accessible to researchers.”
`Id. ¶ 3.
`Ms. Nuss identifies a URL link in Gundlegård (Ex. 1013, 3), testifies
`that she followed that link and that Attachment 2 to her Declaration reflects
`the web page that resulted. Id. ¶¶ 3–4. Attachment 2 purports to be a search
`screen from Linköping University listing bibliographic details regarding
`Gundlegård. As Ms. Nuss notes, it includes at the bottom the text
`“Available from: 2003-10-02 Created: 2003-10-02.” Attachment 2 also
`includes, at the top right, a link to “fulltext.” According to Ms. Nuss,
`clicking on that link results in downloading Gundlegård. Ex. 1021 ¶ 4.
`Ms. Nuss also includes, as Attachment 3 to her Declaration, a screenshot of
`Attachment 2 purportedly archived by the Wayback Machine on October 27,
`2003. Ex. 1021 ¶ 5. According to Ms. Nuss, this “reflects that a copy of this
`thesis was publically available on the internet at least as early as October 27,
`2003.” Id.
`Patent Owner contends that Ms. Nuss’s testimony is insufficient
`because she lacks personal knowledge of the source or date of publication of
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`Gundlegård.2 Prelim. Resp. 24. Patent Owner further argues that Petitioner
`does not offer any evidence that Gundlegård was indexed or otherwise made
`available to a member of the public prior to November 23, 2005. Id. at 22.
`We agree with Patent Owner. Ms. Nuss does not claim to have personal
`knowledge of the general library practices of Linköping University library
`prior to the critical date of the ’938 patent. Nor does Ms. Nuss claim to have
`personal knowledge of the search capabilities of its website in that time
`period. For example, Ms. Nuss does not testify as to the procedures, if any,
`the university used to index or catalogue theses in 2003, or the manner, if at
`all, in which they were indexed or cataloged (e.g., by author, title, subject,
`etc.).
`Petitioner does not introduce any other evidence of the indexing and
`cataloging policies of Linköping University library or the search capabilities
`of its website. Petitioner also does not introduce any evidence that
`Gundlegård was actually disseminated to any interested skilled artisans.
`Thus, the evidence in the Petition is insufficient to show that Gundlegård
`was publicly available as of the priority date of the ’938 patent. Petitioner,
`therefore, has not established that Gundlegård is prior art to the ’938 patent.
`
`
`
`2 Patent Owner raises various objections to the evidence in Ms. Nuss’s
`Declaration, including authenticity and hearsay objections. Prelim. Resp.
`22–25. It is not necessary to rule on these objections for purposes of this
`Decision, as Ms. Nuss’s evidence, if credited, is insufficient to show that
`Gundlegård was publicly accessible.
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`2. Prior Art Status of 3GPP Standard
`Patent Owner contends that Petitioner has not established that 3GPP
`Standard is prior art. Prelim. Resp. 25–27. Because we decide on other
`grounds that Petitioner has not shown a reasonable likelihood that it would
`prevail with respect to claims 1, 11–13, 42, 47, and 57, we do not reach
`Patent Owner’s arguments as to the prior art status of 3GPP Standard.
`
`Claim Construction
`C.
`We interpret claims of an unexpired patent using the broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee,
`136 S. Ct. 2131, 2144–45 (2016). In applying a broadest reasonable
`construction, claim terms generally are given their ordinary and customary
`meaning, as would be understood by one of ordinary skill in the art in the
`context of the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d
`1249, 1257 (Fed. Cir. 2007).
`The parties propose competing constructions of “broadcast.” Pet. 10;
`Prelim. Resp. 14–19. Patent Owner also proposes a construction for
`“validating,” in claim 1. Prelim. Resp. 19–21. Nevertheless, we need not
`construe these or any other terms for the purposes of this Decision to resolve
`the parties’ dispute. See Vivid Technologies, Inc. v. Am. Sci. & Eng’g, Inc.,
`200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be construed
`that are in controversy, and only to the extent necessary to resolve the
`controversy.”).
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`D. Asserted Grounds of Unpatentability
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`between the claimed subject matter and the prior art are “such that the
`subject matter as a whole would have been obvious at the time the invention
`was made to a person having ordinary skill in the art to which said subject
`matter pertains.” We resolve the question of obviousness on the basis of
`underlying factual determinations, including: (1) the scope and content of
`the prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of skill in the art; and (4) objective evidence of
`nonobviousness, i.e., secondary considerations.3 See Graham v. John Deere
`Co., 383 U.S. 1, 17–18 (1966).
`
`
`1. Level of Skill in the Art
`Petitioner, relying on Mr. Snyder’s testimony, contends that a person
`of ordinary skill in the art would have had a bachelor’s degree in computer
`science, engineering, physics, mathematics, or other technical field, along
`with three to five years of practical cellular network and protocol design and
`software development experience. Pet. 9–10 (citing Ex. 1011 ¶ 28). Patent
`Owner does not propose a level of skill or contest Petitioner’s statement.
`Petitioner’s proposal is consistent with the level of ordinary skill reflected by
`the prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355
`(Fed. Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995);
`
`
`3 The record does not include allegations or evidence of objective indicia of
`nonobviousness.
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`In re Oelrich, 579 F.2d 86, 91 (CCPA 1978). For purposes of this Decision,
`we adopt Petitioner’s statement of the level of skill in the art.
`
`
`2. Alleged Obviousness over Gundlegård, 3GPP Standard,
`Sandhu, Zimmers, and Rieger
`For the reasons given above, the evidence in the Petition is not
`sufficient to show public availability of Gundlegård; thus, Petitioner has not
`shown that Gundlegård is prior art to the ’938 patent. Accordingly,
`Petitioner has not established a reasonable likelihood that it would prevail
`with respect to claims 1, 11–13, 42, 47, and 57 as obvious over Gundlegård,
`3GPP Standard, Zimmers, and Sandhu.
`
`
`3. Alleged Obviousness over Mani I, Mani II, 3GPP Standard,
`Sandhu, Zimmers, and Rieger
`a. Overview of Mani I
`Mani I is directed to an emergency message notification system for
`use in a multimedia-capable network. Ex. 1014, Abstract. Figure 5,
`reproduced below, illustrates an example:
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`Figure 5 is a block diagram of a service network that employs a multimedia-
`based emergency notification system. Id. ¶ 17.
`Multimedia node 504, coupled to network 502, serves subscriber
`508A (operating multimedia IT device 506A) for originating and terminating
`calls. Other call parties operating IT devices (e.g., call party 508B with IT
`device 506B and call party 508C with IT device 506C) are similarly coupled
`to network 502. Id. ¶ 39. Softswitch 510 is disposed in network 502 and
`coupled to call treatment server 512, which, in turn, is coupled to database
`environment 514. Id. ¶¶ 40–41. Database environment 514 stores various
`emergency notification alert modes, options, restrictions, and policies.
`Id. ¶ 41.
`Authorized agency 511 is coupled to network 502. Id. ¶ 43.
`Authorized agency 511 could be a governmental agency, and may generate
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`emergency messages, such as for inclement weather and police action. Id.
`According to Mani
`the emergency messages generated by the agency 511 may also
`include information regarding the characteristics of the various
`emergency situations, e.g., type, degree and severity of an
`emergency, target area to which the message is to be
`disseminated, indication as to whether recipients of a message
`are to respond in a particular manner, originating area of the
`emergency message, override capabilities (wherein a delivery
`restriction option selected by a subscriber in the target area is
`superseded by the emergency message to effect delivery), et
`cetera.
`
`Id.
`
`Path 515 illustrates disseminating an emergency message generated
`by authorized agency 511 with respect to particular subscriber 508A.
`Id. ¶ 45. Mani states that “the emergency message paths may be established
`between an authorized entity and the intended recipient without disrupting
`an ongoing call connection involving the recipient, e.g., call connection
`509A, 509B or 509C.” Id.
`
`
`a. Overview of Mani II
`Mani II is a user verification system and method for use in a
`multimedia-capable network wherein access to controlled facilities.
`Ex. 1015, Abstract. Mani II discloses “password and login ID information.”
`Id. ¶ 39.
`
`
`b. Overview of 3GPP Standard
`3GPP Standard is a technical specification, promulgated by 3GPP,
`that, “[f]or UMTS . . . defines the interface requirements for the Cell
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`Broadcast Center – UMTS Radio Network System (RNS) interface and the
`radio interface requirements for UMTS Radio Acces[s] Networks to support
`CBS [Cell Broadcast short message service].” Ex. 1019, p. 6 § 1.
`Petitioner relies, in particular, on 3GPP Standard’s specification of the
`format of CBS messages (id. § 9.4). Pet. 47–50, 52–53 (citing Ex. 1019,
`pp. 27, 30). Specifically, a CBS message includes a “Message Identifier”
`parameter. Ex. 1019, p. 27 § 9.4.1.2. The Message Identifier parameter
`“identifies the source and type of the CBS message. For example,
`‘Automotive Association’ (= source), ‘Traffic Reports’ (= type) could
`correspond to one value.” Ex. 1019, p. 29 § 9.4.1.2.2. A CBS message also
`includes a “Serial Number” parameter that includes “a 2-bit Geographical
`Scope (GS) indicator.” Id., p. 27 §§ 9.4.1.2, 9.4.1.2.1.
`
`
`c. Overview of Sandhu
`Sandhu is a technical magazine article that “explains access control
`and its relationship to other security services such as authentication,
`auditing, and administration.” Ex. 1020, 40 col. 1. Figure 1, appearing on
`page 41 of Sandhu, is reproduced below:
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`Figure 1 is a block diagram showing the relationship between access control
`and other security services in a computer system. Id. at 40 col. 1.
`According to Sandhu, access control “is enforced by a reference monitor
`which mediates every attempted access by a user (or program executing on
`behalf of that user) to objects in the system” and “consults an authorization
`database in order to determine if the user attempting to do an operation is
`actually authorized to perform that operation.” Id.
`Sandhu also describes an “access matrix” that defines the relationship
`between subjects (e.g., users or programs acting on behalf of users) and
`objects. Id. at 41 col. 2. According to Sandhu, “[s]ubjects initiate actions or
`operations on objects. These actions are permitted or denied in accord with
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`the authorizations established in the system. Authorization is expressed in
`terms of access rights or access modes.” Id. at 41 col. 2–42 col. 1.
`
`
`d. Alleged Obviousness of Claims 1, 11–13, 42, 47, and
`57
`Petitioner contends that claim 1 would have been obvious over
`Mani I, Mani II, 3GPP Standard, and Sandhu. Pet. 46. Petitioner cites Mani
`I for its disclosure that “emergency message[s] may be transmitted in
`broadcast mode to the target serving area” (Ex. 1014 ¶ 34) utilizing Public
`Land Mobile Network (“PLMN”) (id. at ¶ 59); and Sandhu for its
`description of “implement user roles to manage and maintain the different
`disclosed privilege and authorization levels.” Pet. at 22–23.
`In particular, Petitioner contends that Mani I’s description of graphic
`user interface (GUI) 600 teaches “a broadcast request interface configured
`for receiving a broadcast message record having a broadcast message [and] a
`defined broadcast target area,” as recited in claim 1. Pet. 47–48. Petitioner
`further cites to 3GPP’s “standardized format for broadcasting messages[,
`which] includes certain message parameters, including a Message ID that
`equates to the claimed broadcast message originator identifier,” as recited in
`claim 1. Id. at 48–49.
`Patent Owner contends that the GUI cited by Petitioner does not
`correspond to a broadcast request interface. Specifically Patent Owner
`asserts “[n]othing in Mani describes the multimedia interface 600 as a
`broadcast request interface; indeed, Mani makes clear that multimedia
`interface 600 is an end user’s communication terminal, [Ex. 1014] at ¶ 49,
`and its use in emergency alerting is to serve as the ultimate destination for
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`the single subscriber emergency alert message.” Prelim. Resp. 53. We
`agree with Patent Owner. Petitioner also states “[t]he system of Mani is
`disclosed as . . . transmitting a message in broadcast mode to the target
`serving area.” Pet. 48. Petitioner does not explain how the GUI that allows
`a subscriber to receive broadcast messages is involved in a broadcast
`request, as required by the claim. Petitioner relies on 3GPP only to show the
`broadcast message record, not the ability to make a broadcast request.
`On this record, Petitioner has not shown persuasively that either
`Mani I or 3GPP Standard teaches “a broadcast request interface configured
`for receiving a broadcast message record having a broadcast message, a
`defined broadcast target area, and a broadcast message originator identifier”
`as recited in claim 1.
`For these reasons, Petitioner has not established a reasonable
`likelihood that it would prevail with respect to claim 1 as obvious over Mani
`I, 3GPP Standard, and Sandhu.
`Claims 11–13 depend from claim 1. Petitioner contends that each of
`these claims would have been obvious over Mani I, 3GPP Standard, and
`Sandhu. Pet. 51–55. We have analyzed Petitioner’s contentions.
`Nevertheless, they do not overcome the deficiencies explained above for
`claim 1. Accordingly, Petitioner has not established a reasonable likelihood
`that it would prevail with respect to claims 11–13 as obvious over Mani I,
`Mani II, 3GPP Standard, and Sandhu.
`Claim 42 recites “forwarding the broadcast message record to an
`output interface associated with the broadcast transmission network for
`transmission to the broadcast message receiving devices within the broadcast
`target area.” Petitioner contends that
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`Mani discloses at least these features of claim 42 in at least that
`upon determination of the appropriate notification scheme for
`each subscriber is determined, the individual sub
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