UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LIVEPERSON, INC.,
`Petitioner,
`
`v.
`
`24/7 CUSTOMER, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00610
`Patent 9,077,804 B2
`____________
`
`Record of Oral Hearing
`Held: April 10, 2018
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`Before CHRISTOPHER L. CRUMBLEY, ROBERT J. WEINSCHENK,
`and JASON W. MELVIN, Administrative Patent Judges.
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`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LIVEPERSON, INC.,
`Petitioner,
`
`v.
`
`24/7 CUSTOMER, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00610
`Patent 9,077,804 B2
`____________
`
`Record of Oral Hearing
`Held: April 10, 2018
`____________
`
`
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, ROBERT J. WEINSCHENK,
`and JASON W. MELVIN, Administrative Patent Judges.
`
`
`
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`Case IPR2017-00610
`Patent 9,077,804 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
` ADAM ALPER, ESQUIRE
` Kirkland & Ellis LLP
` 555 California Street
` 27th Floor
` San Francisco, CA 94104
` 415-439-1400
`
`ON BEHALF OF THE PATENT OWNER:
`
` MARK E. MILLER, ESQUIRE
` O'MELVENY & MYERS LLP
` Two Embarcadero Center
` 28th Floor
` San Francisco, CA 94111
` 415-984-8700
`
`
`
`
`
`The above-entitled matter came on for hearing on April 10, 2018,
`commencing at 1:00 p.m. at the U.S. Patent and Trademark Office,
`Madison Building, 600 Dulany Street, Alexandria, Virginia 22314.
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`Case IPR2017-00610
`Patent 9,077,804 B2
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`P R O C E E D I N G S
` JUDGE MELVIN: Okay. Good afternoon, everyone.
`This is the hearing in IPR2017-00610 between Petitioner,
`LivePerson, Incorporated and Patent Owner, 24/7 Customer
`Incorporated. We're reviewing patent number 9,077,804.
` I'm Judge Melvin, with me is Judge Weinschenk and
`Judge Crumbley is appearing remotely.
` Let's get the parties' appearances, please. For
`Petitioner?
` MR. ALPER: Yes, your Honor. Adam Alper from
`Kirkland and Ellis for Petitioner.
` MR. MILLER: Good afternoon. Mark Miller of
`O'Melveny and Myers for the Patent Owner, 24/7.
` JUDGE MELVIN: Thank you and welcome. We appreciate
`you appearing here today and helping us understand your
`arguments. We look forward to your presentations.
` I'd like to cover a couple of preliminary issues
`before we begin. First, on Friday, Patent Owner filed a
`motion for pro hac vice admission. Is that something you'd
`like us to address right now?
` MR. MILLER: I don't believe that it is necessary
`to --
` JUDGE MELVIN: Okay.
` MR. MILLER: -- (Inaudible) time today.
` JUDGE MELVIN: Okay. That's fine.
` And the second item is a possible motion to exclude.
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`We know Patent Owner filed objections in Paper 29 and
`Petitioner filed an opposition to a motion to exclude in
`Paper 33. And Patent Owner filed a reply in Paper 34, but
`the record does not appear to contain the motion filed by
`Patent Owner.
` So we suspected that perhaps a motion was served,
`but not filed, but maybe counsel for Patent Owner would
`comment on that?
` MR. MILLER: Your Honor, our intention was certainly
`to file a motion to exclude which I thought we had filed.
` JUDGE MELVIN: Okay.
` MR. MILLER: We will check the record --
` JUDGE MELVIN: If you could check into and, you
`know, we'll address it somehow. I mean, obviously Petitioner
`had notice and you know, we're all sort of operating as if
`there is such a motion, but we certainly need it to be in the
`record.
` MR. MILLER: And you're referring to the motion to
`exclude?
` JUDGE MELVIN: Correct.
` Okay. So today each party will have 30 minutes of
`total time to present arguments. Petitioner will start.
` Please keep in mind that Judge Crumbley cannot see
`the screen in this room so please refer to an exhibit or
`slide number for his benefit and for a clear record. Also
`remember that he can only hear you if you speak into the
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`microphone.
` Please do not interrupt the other party. You may
`object after that party's presentation if you need to.
` Petitioner, how much time would you like to reserve
`for rebuttal?
` MR. ALPER: Your Honor, I'd like to attempt to
`reserve ten minutes.
` JUDGE MELVIN: Okay. And with that, we're ready
`when you are.
` MR. ALPER: Thank you, your Honors.
` JUDGE MELVIN: And just before you begin, I'll set
`the timer for 20 minutes so when you see the light, that will
`mean you're into rebuttal.
` MR. ALPER: Thank you very much, your Honors.
` Good afternoon, your Honors. I am Adam Alper from
`Kirkland for Petitioner, LivePerson. I'd like to of course
`focus my comments on ground one. That is the ground that's
`directed to the independent claims of the 804 patent and is
`the only ground where there are disputes raised by 24/7.
` And if we can go to slide 11, I've laid out the
`independent claims of my presentation.
` And by the way, I will be -- I'll be jumping around
`a little bit around in the slides, but I'll try to call out
`the slide numbers so that way it's easy to follow.
` The only disputes raised by 24/7 on the second to
`the last element in the independent claims and in the last
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`element, I'm going to take those in sequence beginning with
`the second to the last element. And I'm sure as your Honors
`are aware, that element concerns the agent sending a link to
`the customer to an application that the customer can then
`launch and use in order to perform, as the patent puts it,
`customer self-service.
` And there's a claim construction issue here. A
`primary claim construction issue. There's a subsidiary claim
`construction issue in this element that I'll touch on, but
`there's a primary one which I want to address first and then
`we can talk a little bit about what the cited prior art
`discloses.
` And the primary claim construction issue is about
`that term, "application", and what is an application. So
`let's start there.
` If we go to slide 12, I've laid out the parties'
`competing proposals or at least a characterization of them,
`because we both say that application deserves its plain and
`ordinary meaning. However, as you can see from the Patent
`Owner's response at page 26 that I've cited on slide 12, the
`Patent Owner contends that the plain and ordinary meaning of
`application excludes web pages.
` And I think there's two takeaways that I'd like to
`point out here before we get into the evidence on claim
`construction. And that is first, that's an exclusion and
`that's a high bar for a Patent Owner to reach when we're
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`talking about the plain and ordinary meaning of a term. And
`we're going to see that in fact we'd be excluding an embodiment
`in the 804 patent specification if we exclude web pages from
`the scope of what an application can be.
` But secondly, and this is important, if Patent Owner
`is incorrect about this construction, there's no dispute that
`the cited prior art, and in particular, the Busey
`reference, discloses a link to an application and we'll see
`that as well.
` So let's begin with the claim construction issue and
`the question of whether web pages are excluded from what the
`claims call an application. And I'd like to skip back to
`slide 4 for a moment for my demonstratives and highlight --
`I'm going to focus on the green part that I've highlighted
`there. And this is in the background.
` In the background of the patent, the patent talks
`about how in the prior art -- the old prior art, I guess you
`could say -- you'd have customers. When they had a problem
`with a product or a service, they'd make a telephone call or
`initiate a communication with an agent of the company for
`support.
` And then it says in the prior art as well that there
`were these self-service applications. And this is likely a
`species of the claim term application. But then these things
`called self-service applications that allowed the customer to
`perform self-service on problems that the customer might be
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`having before having that contact with the agent.
` And the question -- I don't think there's any
`dispute that self-service applications are at least a type of
`the claimed application. And the question that we're posed
`with is, are these self- -- can the self-service applications
`be web-based? Right? Can these be web pages or applications
`that are on the web?
` And the answer is that the patent -- the answer is
`very clear. The answer is obviously yes and we can see that
`if we look in the specification itself.
` So if we go to slide 13 -- I'll skip back forward to
`slide 13. And here I want to focus on the top half of the
`slide here. And this is at column 2, line 67 to column 3,
`line 8.
` And you can see that this is talking about when an
`agent interacts with a customer that's using a self-service
`application. And the patent itself refers to the customer
`performing web-based self-service.
` JUDGE WEINSCHENK: Mr. Alper, is every web page an
`application or is it just a web page that has some sort of
`interactive function that the customer can use?
` MR. ALPER: So we believe that in the context of
`this patent in this claim, every page can be a self-service
`application because it's the type of thing that the customer
`can go to in order to perform self-service.
` So I'll give you a specific example. The patent
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`specifically talks about -- in fact, we can see it if we go
`to slide 14. The very next slide.
` The patent gives some examples here. I'll just note
`that in yellow, what I've highlighted, you can see that the
`patent talks about the customer accessing specific pages. In
`the context of web-based self-service, that's going to be web
`pages.
` But to answer your question, your Honor, the
`examples that the patent gives just right above that yellow
`that I've highlighted here at column 3, line 60 and right
`below it, are the customer filling a rescheduling flight
`form.
` In other words, going to a page that -- where
`they're going to reschedule their flight or beneath that
`where they change their billing cycle. Like, for instance,
`for their power company or cellular phone service or what
`have you.
` And if we -- those certainly have to be
`applications. Those types of web pages would be applications
`in the eyes of the patent.
` Those are the examples that they're providing. And
`it even says if the customer seems to spend a lot of time on
`a particular one of these pages right there.
` And the question is, what if you take a step back?
`What if the customer goes to an initial page that doesn't
`have a form on it that you're not going to fill in data or
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`something like that and it just has a couple of buttons on it
`and one button says reschedule your flight. The next button
`says change your billing -- change your hotel. Another
`button says reschedule your car service. And all that does
`is it's just got a link to another one of these pages.
` Can you say in the eyes of this patent that those
`are not self-service applications? And the answer is, of
`course not. That is all part of what this patent is talking
`about. To allow a customer to perform web-based self-service
`is to go to these pages, work their way through the pages and
`then ultimately maybe they get to something that requires a
`little more interactivity. But it's not necessarily limited
`to just that.
` JUDGE WEINSCHENK: Does it matter to your case?
` JUDGE CRUMBLEY: I --
` JUDGE WEINSCHENK: Sorry.
` JUDGE CRUMBLEY: No, go ahead.
` MR. ALPER: So the answer is it does not. Because
`when we turn to Busey, we can see that the exact types of
`examples of self-service applications that are talked about
`in the 804 patent are actually disclosed in Busey. And I can
`go to that now if that would be helpful.
` JUDGE CRUMBLEY: Counsel, just before you move on,
`let's take interactivity out of it completely. I mean, you
`mentioned that maybe you have three links at the bottom of
`the page. Let's just say we have a static HTML page that
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`just shows text.
` MR. ALPER: Yes.
` JUDGE CRUMBLEY: It shows nothing else. Would that
`be an application within the scope of the patent in your
`view?
` MR. ALPER: I -- we would say that it would be.
`Now, I don't think that that's necessary to find because
`Busey shows more, but we would say it would be because the
`customer is performing self-service by being directed to that
`web page.
` JUDGE CRUMBLEY: Okay. Thank you.
` MR. ALPER: But again, as I -- you know, we'll see
`when we take a look at Busey, even if we take a narrower
`construction of application, something that requires some
`interactivity, Busey clearly has that in its disclosure.
` And maybe with that, that's a good time to switch
`over to Busey and take a look at what Busey shows.
` Now, as your Honors I'm sure know, Busey is a
`customer -- a call center platform with a lot of
`functionality. It was an actual product as they say in the
`specification of Busey. And it specifically describes this
`functionality of providing links by an agent to a customer to
`perform self-service and we'll see that in a moment.
` So if we go to slide 19 -- I'm going to skip to
`slide 19 just to kind of get to the heart of it here.
` Here I'm showing excerpts from the Busey reference.
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`On the left is paragraph 17, on the right is paragraph 103.
`And on the left what I've highlighted in green is -- you can
`see it's very clearly disclosing a URL or a link that can be
`provided by an agent that can be clicked on by a customer to
`take the customer to a specific website. So we know that we
`have that. That doesn't get us to the interactivity part
`yet, but I'm going to get there.
` And then we look at slide 103 and it actually tells
`you there's various different mechanisms that you can -- or
`I'm sorry. Paragraph 103. There's various different
`mechanisms that Busey provides to allow that agent to push
`that link out to the customer.
` So a couple of examples that we have here are the
`Say URL button. That's Busey's word for typing the text of
`the URL and then it shows up in the chat window of the
`customer and then the customer can click on it.
` And then you have the Send URL button and that's
`typing -- the agent types in the text of the URL and then
`that gets sent to the customer and it actually brings up the
`web page for the -- on the customer's screen.
` And you can see that's -- that description is
`provided -- those two functionalities are provided at the
`very bottom of 103 where Busey says these buttons are useful
`where, for example, a URL is desired to be merely sent as
`informative text and that's the Say button, or where a URL
`embedded in text is desired to be used to direct the
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`customer's display to a specific web page and that's the Send
`URL button.
` I think this really comes into focus when we look at
`Figure 3A which is the corresponding figure and this is where
`we're going to start getting into the interactivity point.
`So let's go to slide 20 and look at Figure 3A.
` And this is the screen that the agent sees and it
`has got a number of functions on it and we'll focus on a few
`of them. But the box that I want to focus on here, it's box
`532 in kind of the middle right. And that's showing what the
`customer -- the text, the dialogue between the customer --
`the agent and the customer.
` And what you can see here is, using the Say URL
`button in this instance, the agent is typing some text to the
`customer. And what the agent says is, "Hi, Bill". Bill is
`the customer. You can receive a copy of the warrantee via
`e-mail at warranty.tnet.com.
` So what does that tell us? So first of all, it's
`sending a link to the customer. Second of all, it's to a web
`page, warranty.tnet.com, and -- which we think is -- that's
`enough there.
` But if we wanted to -- you know, if we wanted to
`talk about interactivity, look at what that web page does.
`It allows the customer to go to the web page and ask for a
`copy of a warranty via e-mail. In other words, typing in
`their e-mail address and then having that warranty e-mailed
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`to them. And that certainly crosses the threshold of
`interactivity for purposes of self-service. And that's on
`Figure 3A.
` But that's not it. There's other examples in Busey
`and I want to talk about those. But that's enough. And
`that's a graphical example, of course, that's described in
`this specification as well.
` You can see on the right in 534 it refers to -- it
`says Yahoo. Yahoo, that's kind of a preset link that -- in
`the specification it talks about -- if we go to slide 21, we
`have blown up the corresponding portion of the specification
`at paragraph 104 in Busey.
` It talks about how there are these predefined
`resources like the Yahoo URL that you can click on and have
`that get sent to the customer. And we have provided expert
`testimony, although I don't think you'd need it to know that
`Yahoo is an interactive website and the expert testimony, for
`the record, although it's in our briefing, is in Mr. Lipoff's
`declaration at paragraph 10. And I've shown it on
`slide 22 although I'm not going to dwell on it because I
`think it's a pretty easy point to understand.
` And so is that all in terms of interactivity because
`24/7, in its briefing, makes a point about the issue that
`your Honors were just raising about the interactivity. And I
`think this is where we should take a look back at the 804
`patent and what the 804 patent calls an application for
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`purposes of the claims because -- and we'll go -- let me flip
`back to slide 14 for a minute that we looked at already.
` And remember, the examples in the patent of a
`application were forms. Like a rescheduling your flight form
`or a rescheduling your billing cycle form.
` And if we now go to my next slide which is slide 23,
`this is paragraph 2 -- this is in paragraph 236 of Busey.
`And I'm going to focus on the bottom half of the slide that's
`the -- from -- the part from Busey at the top is in our
`petition.
` And this is describing what Busey refers to as its
`plaid scripting language. And this is a scripting language
`that can be used to automate certain functions. And one of
`the functions in the plaid scripting language is -- in Busey
`is the Push URL function. And as you can see, I've
`highlighted in green down in the bottom half of that excerpt
`the purposes of the Push URL function is what it means.
` It means what it says. It's to push links or URLs
`to the customer. And that we know Busey can do.
` We already talked about that in other areas in
`Figure 3A and the corresponding text, but what I think is
`really interesting here is where -- what it goes on to say is
`an example of the types of things that you can push to a
`customer by way of a web link and it says it right there.
`You can use this to push the customer forms that they should
`fill out.
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` And so what does that tell us? Well, we know in the
`804 patent that form -- filling out forms or when you go to
`an -- when you go fill out a form, that constitutes an
`application. And we know in Busey now that you can push a
`customer to an application -- a web page that will allow them
`to fill out a form. And so we have an actual identity when
`it comes to the examples of embodiments of applications and
`Busey and the 804 patent.
` JUDGE WEINSCHENK: So can we talk about the server
`limitation?
` MR. ALPER: Yes.
` JUDGE WEINSCHENK: I think you're getting there
`next, right?
` MR. ALPER: Yes. Let me skip to that then.
` So I'll start that on my slide 36. And I think
`there's just two -- would you like to me --
` JUDGE WEINSCHENK: Please.
` MR. ALPER: Okay. There's two points to be made
`here. First of all, if this is only -- 24/7 only raises this
`argument if you focus on the web browser as the only
`application here. If we look at the web page as the
`application, which it is and which we talked about, then this
`argument doesn't apply because the web page, everyone agrees,
`is launched from a remote server. So that's point one.
` Point two --
` JUDGE WEINSCHENK: You're relying on both?
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` MR. ALPER: We're relying on both. We're relying on
`both. We put both in our briefing. We don't think you have
`to get to the web browser, we think that the web browser
`allows you to access the web page. It's part of it for sure,
`but we are relying on both.
` So if you look at what we're talking -- so that's
`the first point is that you don't need to reach this. But if
`you do, and this is the second point, we see that 24/7 is
`adding a restriction into the claims that just doesn't
`belong. And we have a couple of reasons for that.
` First, we're relying on the District Court's
`construction obviously using a more restrictive standard.
`The Phillips standard. It's just a common sense level.
` 24/7 then adds the restriction -- a restriction into
`that construction of a remote network server. And at that
`point, how could you possibly be talking about the broadest
`reasonable interpretation when a District Court reached a
`broader interpretation? So we think that, just on a common
`sense level, there's a problem right there.
` But 24/7's construction would unequivocally exclude
`an embodiment.
` You look at -- I can go to my next slide. It's
`slide 37.
` This is right in the front of the patent. Column 2.
`It's talking about the invention in a general sense and it
`talks about, as an example, you can launch the application
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`Case IPR2017-00610
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`from the user's personal device. In this example, it's a
`phone belonging to the customer. And that it doesn't have to
`be launched from a remote server.
` And so we can just not reconcile a narrowing
`construction that requires the server to be a remote server
`when you have here at column 2, at line 41, a specification,
`an embodiment that shows that you can serve up the
`application from your phone.
` JUDGE MELVIN: Well, if the application is, let's
`say, served from the remote server but executes on the phone,
`does that application reside at the server or the phone?
` MR. ALPER: If it -- I think it -- you could say
`that it resides at the server because it's being served up
`from the server and it's executing on the phone.
` But I think that there's a -- I think -- and that
`would be the -- if the application is out there on the web
`and sitting out there, and it's a perfectly acceptable -- in
`that instance, you would be serving up from a remote server.
` But then in the specification here, we're talking --
`what it's talking about is not that situation. You're
`talking about actually launching an application from the
`phone. As an example. Not the only example, but as an
`example.
` I would just finish -- in my remaining time before I
`get into my rebuttal time, I would go to the proactive
`monitoring, if that makes sense.
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` JUDGE MELVIN: Please.
` JUDGE CRUMBLEY: So Counsel, on that topic. So
`maybe you could address what -- in your view, what work is
`the word "proactively" doing in the claim? How is
`proactively monitoring different than just monitoring?
`Because your expert seems to say on cross-examination that
`they mean the same thing.
` MR. ALPER: Right. I think that -- so I understand
`the testimony that you're talking about. Let me clear all of
`that up. I think that's the crux of the issue here.
` So why is the monitoring proactive in this patent?
`And the answer is it's because -- and it talks about this in
`the background. The background talks about how customers
`could reach out to agents in the prior art and then it says
`they could also look at -- use these self-service
`applications all in the prior art.
` And then when it starts talking about the problems
`of the prior art as -- in that first column in the second
`paragraph of the specification it tells us that one of the
`problems is that, as the customer is moving through the
`self-service applications, the agent doesn't know what the
`customer is doing. So that when the customer finally reaches
`out to the agent, the agent is a little bit, I guess I could
`put it, on their heels.
` In other words they have -- they don't know what the
`problem is and it takes more time to actually figure out what
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`Case IPR2017-00610
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`is wrong and that's a big problem. And there's a lot of
`customers, but agents are a scarce resource. And so that's
`one of the issues.
` And so what the patent talks about is the ability
`for the agent to know or monitor what the customer is doing
`on these self-service applications in anticipation of that
`potential call. So that's why it's proactive. It's because
`you're monitoring in anticipation of the call coming in, so
`you're proactively monitoring.
` In fact, if you look at 24/7's definitions for
`proactive, that's what it says. It says --
` JUDGE MELVIN: Does that mean that all monitoring is
`proactive?
` MR. ALPER: It means -- does that mean that all
`monitoring of the customer -- of a customer -- only in this
`context, I think. I don't think all monitoring is
`necessarily proactive. The monitoring here is proactive
`because the system is set up in a way to anticipate customers
`calling in after they've been working on this self-service
`application.
` JUDGE CRUMBLEY: So if at the time the customer
`reaches the agent, the agent has no information about what
`the customer has done or any information about the customer
`at all and then the agent monitors the customer's progress
`from that point forward, in your view, that is not proactive
`monitoring?
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` I'm just trying to figure out where the line is
`here.
` MR. ALPER: Right. No, I think that that could be
`proactive monitoring because it could be in anticipation of
`further contact via the customer. My point is that the
`proactive part is, in the context of the invention and the
`problem that they set up and their solution, is getting out
`in front of that next contact by the customer.
` It's a way -- you're doing the monitoring so that
`way you can -- in anticipation that there'll be another
`contact. That's what they mean by that term.
` JUDGE CRUMBLEY: Well, if the agent monitors the
`progress, has no information before contact with the
`customer --
` MR. ALPER: Yes.
` JUDGE CRUMBLEY: -- so he's coming into it blind.
`On your heels as you said.
` MR. ALPER: Right.
` JUDGE CRUMBLEY: And then the agent anticipates a
`problem with the customer before that problem arises during
`the monitoring. Is that proactive monitoring? Because that
`would seem to me to be the common usage of proactive.
` Is it -- and that's at least -- I believe one of the
`experts said, you know, it's in contrast with reactive, right?
`Which would mean, to me at least, dealing with a problem when
`it happens as opposed to before.
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` MR. ALPER: Right. Well, I think that -- so I think
`that's a good question. I think claim -- the independent
`claims allow for an agent to then do something affirmatively
`without waiting for a customer to make contact. They don't
`require that, they just allow for that to happen.
` So it's proactive monitoring in the sense that it
`will allow the agent to potentially reinitiate contact upon
`seeing that there's a problem. And there are depending
`claims that discuss reinitiating the contact.
` But there -- but that's not a requirement of claim
`1, but I -- in that sense, I agree with your Honor that that
`is -- that proactive monitoring is at least allowing that
`functionality.
` I don't think that the patent excludes the situation
`where the agent is monitoring the customer to see if there
`are problems and to at least be up to speed on what the
`customer is doing so that the agent can proactively address
`those problems.
` But where the customer then turns around and makes
`the first contact, I don't think that's necessarily excluded
`by the claims, I just don't think the independent claims take
`that next step. If that makes sense.
` But I'm not sure, am I answering your question?
` JUDGE CRUMBLEY: I think so.
` MR. ALPER: I think the important point here is that
`proactivity is -- I think, as you have put it, it allows --
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`Case IPR2017-00610
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`it is monitoring that allows the agent to get in front of the
`next set of problems.
` What would be monitoring that wouldn't allow the
`agent to get into the next set of problems? The 804 patent
`doesn't give examples of that, but presumably, if the agent
`was performing some form of monitoring that was irrelevant to
`the customer's self-service journey, that's the way they talk
`about it in the patent, then that would be something that
`wouldn't be helpful. I don't know what it would be.
` Just how many -- maybe it's how many customers there
`are out there or, you know, that kind of thing could
`potentially be an example of something that wouldn't help
`essentially answer the customer problems.
` JUDGE MELVIN: The monitoring that you're speaking
`about, isn't that discussed in the specification sort of
`under the -- you know, under the overall setting of the
`alerting module?
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