Trials@uspto.gov
`571.272.7822
`
`
`Paper 7
`Filed: July 26, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`SECURUS TECHNOLOGIES, INC.,
`Petitioner,
`
`v.
`
`GLOBAL TEL*LINK CORPORATION,
`Patent Owner.
`_______________
`
`Case IPR2017-00758
`Patent 8,515,031 B2
`_______________
`
`
`Before KEVIN F. TURNER, BARBARA A. BENOIT, and
`GEORGIANNA W. BRADEN, Administrative Patent Judges.
`
`TURNER, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`571.272.7822
`
`
`Paper 7
`Filed: July 26, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`SECURUS TECHNOLOGIES, INC.,
`Petitioner,
`
`v.
`
`GLOBAL TEL*LINK CORPORATION,
`Patent Owner.
`_______________
`
`Case IPR2017-00758
`Patent 8,515,031 B2
`_______________
`
`
`Before KEVIN F. TURNER, BARBARA A. BENOIT, and
`GEORGIANNA W. BRADEN, Administrative Patent Judges.
`
`TURNER, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
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`IPR2017-00758
`Patent 8,515,031 B2
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`I.
`
`INTRODUCTION
`
`A. Background
`Securus Technologies, Inc. (“Petitioner”) filed a Petition (Paper 2,
`“Pet.”) to institute an inter partes review of claims 1–20 of U.S. Patent No.
`8,515,031 B2 (Ex. 1001, “the ’031 Patent”). Global Tel*Link Corporation
`(“Patent Owner”) filed a Preliminary Response (Paper 6, “Prelim. Resp.”)
`thereto. We have jurisdiction under 35 U.S.C. § 314, which provides that an
`inter partes review may not be instituted “unless . . . there is a reasonable
`likelihood that the petitioner would prevail with respect to at least 1 of the
`claims challenged in the petition.” See also 37 C.F.R § 42.4(a) (delegating
`authority to the Board).
`Upon consideration of the Petition, the Preliminary Response and both
`parties’ evidence, we conclude Petitioner has not established a reasonable
`likelihood it would prevail with respect to at least one of the challenged
`claims. Accordingly, for the reasons that follow, we deny institution of an
`inter partes review.
`B. Related Proceedings
`Petitioner informs us that the ’031 Patent is the subject of a patent
`infringement suit brought by Patent Owner captioned Securus Techs., Inc. v.
`Global Tel*Link Corp., Case No. 3:16-cv-01338 (N.D. Tex.), upon which
`Patent Owner concurs. Pet. 1, Paper 5, 1. In addition, the parties list U.S.
`Patent Nos. 8,243,891 and 9,282,188, as being related, as well as related
`applications U.S. App. Nos. 14/626,781, 14/626,804, and 14/946,361. Id.
`C. The ’031 Patent
`The ’031 Patent is directed to a voice message exchange system and
`method for improving communication between an inmate and a third party
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`by enabling the inmate to leave a message when a call is not answered. Ex.
`1001, Abstract. Third parties that receive the message can reply with a
`message, as well as other outside parties that meet the institution’s
`requirements. Id. Figure 2 of the ’031 Patent provides a flow chart of the
`preferred process of the disclosed voice message exchange system, and is
`reproduced below:
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`The identity of the inmate is authenticated at step 202, and the inmate
`dials the desired telephone number at step 206. Id. at 12:29–31, 40–42. The
`system verifies that the user is authorized to call the number that was dialed
`(step 203), and if authorized, the call is placed. Id. at 11:42–45. If “after a
`set number of rings the call remains unanswered,” then the inmate may leave
`a message at step 213. Id. at 12:50–52. To leave the message, the inmate
`records a message (step 215) and the system then dials the desired number
`(step 219). Id. at 12:1–4; 13:16–18, 20–25.
`If the system does not reach the calling party, then the call attempt is
`repeated periodically. Id. at 13:20–40. “[W]hen the call is answered by a
`live person,” the recorded message is played (step 229), and the system bills
`for phone usage to an appropriate party, i.e., either the calling party or the
`called party (step 233). Id. at 13:25–30.
`D. Illustrative Claim
`As noted above, Petitioner challenges claims 1–20, with claims 1 and
`11 being independent claims. Claims 1 is illustrative of the challenged
`claims and is reproduced below:
`
`1. A computer implemented method for regulating unanswered phone
`calls placed by a registered user of a phone system serving a
`secured premises, comprising:
`verifying whether a unique access identifier provided by the registered
`user of the phone system is authorized to place a phone call to a
`destination associated with a phone number entered by the
`registered user;
`attempting to connect the phone call to an end user associated with the
`authorized destination for the phone number entered by the
`registered user;
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`recording a message provided by the registered user of the phone
`system for the end user associated with the authorized destination
`for the phone number entered by the registered user when an
`attempt to connect the phone call to the end user fails;
`storing the recorded message provided by the registered user in a site
`server located within a telecom platform that supports the secure
`premises;
`dialing the phone number entered by the registered user based on
`periodic intervals until the phone call is connected to the end user;
`playing the recorded message provided by the registered user that is
`retrieved from the site server for the end user when the phone call
`is connected to the end user; and
`billing an account associated with the unique access identifier
`provided by the registered user when the recorded message
`provided by the registered user is played for the end user.
`Ex. 1001, 14:56–15:16 (emphases added).
`
`E. The Asserted Grounds of Unpatentability
`
`Petitioner challenges the patentability of claims of the ’031 Patent
`based on the following grounds under 35 U.S.C. § 103 (Pet. 4–5):
`References
`Basis
`Claims Challenged
`Falcone1 and Hodge2
`§ 103
`1, 2, 7, 8, 11, 12, 17,
`and 18
`
`
`1 U.S. Patent No. 7,561,680 B1 (filed Aug. 13, 2003) (issued Jul. 14, 2009)
`(Ex. 1004, “Falcone”).
`2 U.S. Patent Publication No. 2004/0029564 A1 (filed Aug. 8, 2002)
`(published Feb. 12, 2004) (Ex. 1005, “Hodge”).
`
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`References
`Falcone, Hodge, Mow,3 Cree,4
`Bayne,5 and Bauer6
`
`Basis
`§ 103
`
`Claims Challenged
`3–6, 9, 10, 13–16, 19,
`and 20
`
`II. DISCUSSION
`A. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are
`interpreted according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (“We
`conclude that the regulation represents a reasonable exercise of the
`rulemaking authority that Congress delegated to the Patent Office.”). Under
`that standard, and absent any special definitions, we give claim terms their
`ordinary and customary meaning, as would be understood by one of ordinary
`skill in the art at the time of the invention. In re Translogic Tech., Inc.,
`504 F.3d 1249, 1257 (Fed. Cir. 2007). An inventor, however, may provide a
`meaning for a term that is different from its ordinary meaning by defining
`the term in the specification with “reasonable clarity, deliberateness, and
`precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`Limitations, however, are not to be read from the specification into the
`
`
`3 U.S. Patent No. 6,668,045 B1 (filed Oct. 30, 2000) (issued Dec. 23, 2003)
`(Ex. 1006, “Mow”).
`4 U.S. Patent No. 6,665,380 B1 (filed Jan. 11, 1999) (issued Dec. 16, 2003)
`(Ex. 1007, “Cree”).
`5 U.S. Patent Publication No. 2003/0198325 A1 (filed Oct. 29, 2002)
`(published Oct. 23, 2003) (Ex. 1008, “Bayne”).
`6 U.S. Patent Publication No. 2004/0120475 A1 (filed Dec. 20, 2002)
`(published Jun. 24, 2004) (Ex. 1009, “Bauer”).
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`claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). In addition,
`the Board may not “construe claims during [an inter partes review] so
`broadly that its constructions are unreasonable under general claim
`construction principles.” Microsoft Corp. v. Proxyconn, Inc., 789 F.3d
`1292, 1298 (Fed. Cir. 2015). We construe the challenged claims according
`to these principles.
`Petitioner proposes no explicit constructions for the claim terms,
`arguing that all claim terms should be given their broadest reasonable
`interpretation as understood by a person of ordinary skill in the art. Pet. 10.
`Likewise, Patent Owner offers no explicit constructions for the claim terms.
`Prelim. Resp. 5–6.
`For purposes of this Decision and based on the record before us, we
`determine that express constructions for the claim terms are not necessary in
`determining whether an inter partes review should be instituted.
`
`B. Principles of Law
`A claim is unpatentable under 35 U.S.C. § 103 if “the differences
`between the subject matter sought to be patented 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.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved 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,
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`i.e., secondary considerations. See Graham v. John Deere Co. of Kansas
`City, 383 U.S. 1, 17–18 (1966).
`“A determination of whether a patent claim is invalid as obvious
`under § 103 requires consideration of all four Graham factors, and it is error
`to reach a conclusion of obviousness until all those factors are considered.”
`Apple v. Samsung Elecs. Co., Ltd., 839 F.3d 1034, 1048 (Fed. Cir. 2016) (en
`banc) (citations omitted). “This requirement is in recognition of the fact that
`each of the Graham factors helps inform the ultimate obviousness
`determination.” Id.
`“In an [inter partes review], the petitioner has the burden from the
`onset to show with particularity why the patent it challenges is
`unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed.
`Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (requiring inter partes review
`petitions to identify “with particularity . . . the evidence that supports the
`grounds for the challenge to each claim”)). This burden never shifts to
`Patent Owner. See Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800
`F.3d 1375, 1378 (Fed. Cir. 2015) (citing Tech. Licensing Corp. v. Videotek,
`Inc., 545 F.3d 1316, 1326–27 (Fed. Cir. 2008)) (discussing the burden of
`proof in inter partes review). Furthermore, Petitioner cannot satisfy its
`burden of proving obviousness by employing “mere conclusory statements.”
`In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016).
`Thus, to prevail in an inter partes review, Petitioner must explain how
`the proposed combinations of prior art would have rendered the challenged
`claims unpatentable. We determine whether the information presented in the
`Petition shows there is a reasonable likelihood that Petitioner would prevail
`in establishing that one of the challenged claims would have been obvious
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`over the proposed combinations of prior art. We analyze the challenges
`presented in the Petition in accordance with the above-stated principles.
`C. Level of Ordinary Skill in the Art
`In determining whether an invention would have been obvious at the
`time it was made, we consider the level of ordinary skill in the pertinent art
`at the time of the invention. Graham, 383 U.S. at 17. “The importance of
`resolving the level of ordinary skill in the art lies in the necessity of
`maintaining objectivity in the obviousness inquiry.” Ryko Mfg. Co. v.
`Nu-Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991).
`Petitioner’s Declarant, Mr. Benedict J. Occhiogrosso, opines that a
`person of ordinary skill in the art relevant to the ’031 Patent would have had
`would have familiarity with voice messaging systems and
`telecommunications systems, including networking, call processing, data
`storage, user authentication, security, and resource management relating
`specifically to voice messaging systems and billing techniques and interfaces
`for services provided by voice messaging systems. Ex. 1003 ¶ 80. He also
`testifies that a person of ordinary skill in the art “would have had at least a
`bachelor’s degree in electrical engineering, computer engineering, or the
`equivalent and two or more years of industry experience in a relevant field.”
`Id. Patent Owner does not appear to take a position on what the level of
`ordinary skill in the pertinent art at the time of the invention. See Prelim.
`Resp.
`
`Based on our review of the ’031 Patent, the types of problems and
`solutions described in the ’031 Patent and cited prior art, and the testimony
`of Mr. Occhiogrosso, we adopt and apply Mr. Occhiogrosso’s definition of a
`
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`person of ordinary skill in the art at the time of the claimed invention for
`purposes of this Decision.
`
`D.
`
`Alleged Obviousness over Falcone and Hodge
`Claims 1, 2, 7, 8, 11, 12, 17, and 18
`Petitioner contends claims 1, 2, 7, 8, 11, 12, 17, and 18 of the ’031
`Patent are unpatentable under 35 U.S.C. § 103 in view of Falcone and
`Hodge. Pet. 9–38. For reasons that follow, we determine Petitioner has not
`demonstrated a reasonable likelihood of prevailing as to the challenged
`claims.
`1. Overview of Falcone
`Falcone is directed to systems and methods which allow a calling
`party to store messages for a called party even if the called party does not
`already have message storage facilities. Ex. 1004, Abstract. Falcone
`indicates that “[d]elivery of the message is controlled by the called party and
`may require the called party to agree to pay for the message delivery
`service.” Id. Falcone discloses numerous options for the authentication,
`delivery, and billing for delivery of the message, and additionally provides
`that the third party may leave a return message that the inmate may later
`retrieve. Id. at 3:20–53.
`A call application manager facilitates various calling services,
`including inbound and outbound calling and billing functions. Id. at 4:4–10.
`The call application manager may be used to require authentication of the
`calling party (e.g., by use of a personal identification number) and
`verification that the called party is authorized to be called by calling party.
`Id. at 4:53–59. After authentication, the call application manager, in one
`embodiment, attempts to establish a communication connection with the
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`called party, and if the called party is unavailable, Falcone recognizes that it
`would be “advantageous to facilitate delivery of a message from the calling
`party to the called party.” Id. at 6:15–27, 38–49.
`The messaging system may then attempt to call the called party by
`“making periodic call attempts … communicating with network elements of
`network … to deliver the message.” Id. at 7:29–37. In other embodiments,
`the message may be stored (e.g., at the controlled facility) for later remote
`retrieval by the called party. Id. at 10:37–63. Thereafter, the called party
`may be called periodically to notify the called party that a message awaits,
`“e.g., placing a series of calls to the called party every 30 minutes until a call
`is answered or until a threshold or other terminating condition is reached.”
`Id. at 10:51–58.
`Falcone also discloses that the called party may be informed of the
`pending message by providing a signal that “actuates a lamp, buzzer, special
`ringtone, special dial tone, or other indicator at the called station.” Id. at
`10:64–67. The called party can also be informed through an email send at a
`specified email address in lieu of the called party receiving a phone call that
`a message from the calling party is available, and Falcone makes clear that
`there is no limitation that messages be delivered via telephone. Id. at 14:2–
`8, 31–35.
`2. Overview of Hodge
`Hodge is directed to a “computer-based telecommunication system
`with the capacity to allow an institution to control, record, monitor, and
`report usage and access to a telephone network.” Ex. 1005 ¶ 1. More
`specifically, it is drawn to a “telephone call system including a means for
`identifying and authenticating an institutional calling party.” Id. ¶ 43.
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`3. Analysis of Cited Art as Applied to Independent Claims 1 and 11
`Petitioner contends independent claims 1 and 11 of the ’031 Patent are
`unpatentable under 35 U.S.C. § 103 in view of Falcone and Hodge. Pet. 20–
`39. We address those independent claims below.
`
`a. The limitations of claims 1 and 11
`Petitioner argues that “[c]laim 11 is nearly identical to claim 1,” but
`recites minor differences and elements, which are described by Falcone.
`Pet. 36–37. Pertinent to our evaluation of Petitioner’s ground against claims
`1 and 11, we specifically review Falcone’s teachings with respect to “Step
`1F” of claim 1 as addressed in the Petition, and where Petitioner does not
`provide further analysis of the equivalent limitation in claim 11. Id. at 36–
`39.
`
`b. “playing the recorded message provided by the registered user
`that is retrieved from the site server for the end user when the
`phone call is connected to the end user”
`Claim 1 recites the step of “playing the recorded message provided by
`the registered user that is retrieved from the site server for the end user when
`the phone call is connected to the end user,” which Petitioner refers to as
`“Step 1F.” Pet. 32–34. We note that claim 11 recites an analogous element.
`See Ex. 1001, 16:46–48. The step in claim 1 recites “the phone call,” where
`that claim element finds antecedent basis from “a phone call” authorized in
`the “verifying” step and further recited as being “connected to the end user,”
`in the “dialing” step of claim 1. Id. at 14:56–15:16. From the recitations of
`claim 1, it is clear that the playing of the recorded message must occur
`during the same phone call that is connected to the end user by dialing the
`phone number entered by the registered user.
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`Petitioner contends that if a message is recorded, “Falcone discloses
`performing periodic callbacks to the called party until the called party
`answers or there is a terminating event.” Pet. 32. Then, Petitioner argues
`that Falcone discusses “at least two response options,” where the stored
`message is delivered, or another option where a notification is delivered to
`the called party that the messaging system has a stored message awaiting
`retrieval. Id. As Patent Owner notes, Petitioner relies solely on the
`disclosure of Falcone for this limitation. Prelim. Resp. 11.
`Per our reading of claim 1, discussed above, the second “option”
`discussed by Petitioner would not meet the limitations of claim 1 because
`receiving a notification of the message, i.e., that a message is waiting
`retrieval, is not the same as the claimed “playing the recorded message . . .
`when the phone call is connected.” The called party could call into the
`system and have the message played, but that would not be on a phone call
`initiated by the system, i.e., a different phone call. While it could be argued
`that these actions are analogous or obvious over each other, the Petition does
`not provide analysis or argument of these actions being analogous or
`obvious over each other. See Pet. 32–34.
`With respect to the “first option” of Falcone, Patent Owner argues that
`Falcone never refers to such options, and that Petitioner “manufactures this
`‘first option’ by taking citations to Falcone out of context.” Prelim. Resp.
`12–13. Patent Owner argues that the quoted portion of Falcone, i.e.,
`“messaging system 20 preferably initiates communication with called party
`103, such as making periodic call attempts to the called party. . . to deliver
`the message,” refers to the notification of a message, and not the message
`itself. Prelim. Resp. 13 (citing Pet. 32, Ex. 1004, 7:29–37). Similarly,
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`Patent Owner argues that Petitioner’s citations to the message trigger logic
`of Falcone supporting inbound and outbound communications also does not
`support the “first option.” Id. at 13–14 (citing Pet. 33, Ex. 1004, 11:23–26).
`This is because because Falcone makes clear that inbound portion handles a
`query from a called party as to whether any undelivered messages are
`pending, and the outbound portion are used to determine when a called party
`is available to receive notification of a pending message. Id. (citing Ex.
`1004, 11:26–28, 49–54). We agree with Patent Owner.
`Overall, Falcone discloses that the called party may be called
`periodically to notify the called party that a message awaits. Ex. 1004,
`10:51–58. The predominate disclosure of Falcone is for the system to notify
`of the existence of a message, and not to immediately provide such a
`message on a system initiated phone call. See Id. at Abstract, 2:17–26. The
`portions of Falcone cited by Petitioner relating to “delivery” (id. at 7:26),
`“deliver the message” (id. at 7:37), and “delivery of a pending message” (id.
`at 11:25–26), appear to part of the goal of Falcone, but do not specifically
`address delivery on a system-initiated phone call. We also are persuaded by
`Falcone’s discussion that there is no limitation that messages be delivered
`via telephone at all, such that merely providing an indication of a waiting
`message would be sufficient to meet Falcone’s goal. Id. at 31–35. As such,
`although a “first option” could be contemplated in conjunction with
`Falcone’s system, we discern no specific disclosure of the same, and
`Petitioner fails to direct us to any such specific disclosure of Falcone.
`Similarly, the Petition does not suggest that such a “first option”
`would be an obvious variation, but rather argues that it is taught, which we
`do not find persuasive. Pet. 32–34. Petitioner argues that “[o]ne having
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`ordinary skill would have understood that delivery of the retrieved message
`in Falcone also includes playing the retrieved message” (id. at 34, citing Ex.
`1003 ¶ 172), but such delivery need not occur on a system-initiated phone
`call, per claim 1. Similarly, Mr. Occhiogrosso’s testimony (Ex. 1003
`¶¶ 169–172) does not persuade about the disclosure of a “first option,”
`although he argues that the specified limitation of claim 1 would have been
`obvious over Falcone.
`On this record, we conclude Petitioner has not established a
`reasonable likelihood it would prevail in showing that claims 1 and 11
`would have been obvious under 35 U.S.C. § 103 in view of the teachings of
`Falcone and Hodge.
`4. Dependent Claim 2, 7, 8, 12, 17, and 18
`Petitioner’s analysis of dependent claims 2, 7, 8, 12, 17, and 18 is
`dependent on its analysis of independent claims 1 and 11. Pet. 39–47. As
`we are not persuaded that Petitioner has demonstrated a reasonable
`likelihood it would prevail with respect to the independent claims, we
`likewise are not persuaded as to the subject dependent claims.
`5. Summary
`On this record, we conclude Petitioner has not established a
`reasonable likelihood it would prevail in showing that claims 1, 2, 7, 8, 11,
`12, 17, and 18 would have been obvious under 35 U.S.C. § 103 in view of
`the teachings of Falcone and Hodge.
`
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`E.
`
`Alleged Obviousness over Falcone, Hodge, Mow,
`Cree, Bayne, and Bauer
`Claims 3–6, 9, 10, 13–16, 19, and 20
`Petitioner contends dependent claims 3–6, 9, 10, 13–16, 19, and 20 of
`the ’031 Patent are unpatentable under 35 U.S.C. § 103 in view of Falcone,
`Hodge, Mow, Cree, Bayne, and Bauer. Pet. 47–75. This latter ground
`depends on the obviousness of independent claims 1 and 11 over Falcone
`and Hodge, discussed above. Id. As we are not persuaded that Petitioner
`has demonstrated a reasonable likelihood it would prevail with respect to the
`independent claims, we likewise are not persuaded as to the subject
`dependent claims.
`
`III. CONCLUSION
`For the foregoing reasons, we determine Petitioner has not
`demonstrated there is a reasonable likelihood it would prevail in establishing
`the unpatentability of claims 1–20 of the ’031 Patent.
`
`IV. ORDER
`In consideration of the foregoing, it is
`ORDERED that Petitioner’s request for institution of inter partes
`review is denied; and
`FURTHER ORDERED that no inter partes review will be instituted
`pursuant to 35 U.S.C. § 314(a) with respect to any of the challenged claims
`of the ’031 Patent on the grounds of unpatentability asserted in the Petition.
`
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`PETITIONER:
`Justin B. Kimble
`Nicholas C. Kliewer
`Brian P. Herrmann
`BRAGALONE CONROY PC
`jkimble@bcpc-law.com
`nkliewer@bcpc-law.com
`bherrmann@bcpc-law.com
`
`
`PATENT OWNER:
`Michael D. Specht
`Lauren C. Schleh
`Michael B. Ray
`STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`mspecht-PTAB@skgf.com
`lschleh-PTAB@skgf.com
`mray-PTAB@skgf.com
`
`
`
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