Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Entered: Paper 9
`Entered: September 19, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS, INC.
`Petitioner,
`
`v.
`
`BRIDGE AND POST, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01423
`Patent 7,657,594 B2
`____________
`
`
`Before MIRIAM L. QUINN, BARBARA A. PARVIS, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
`TROCK, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`
`
`Entered: Paper 9
`Entered: September 19, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS, INC.
`Petitioner,
`
`v.
`
`BRIDGE AND POST, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01423
`Patent 7,657,594 B2
`____________
`
`
`Before MIRIAM L. QUINN, BARBARA A. PARVIS, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
`TROCK, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`
`IPR2017-01423
`Patent 7,657,594 B2
`
`
`I. INTRODUCTION
`
`Unified Patents, Inc. (“Petitioner”) filed a Request for Rehearing
`
`(Paper 8, “Reh’g Req.”) of our Decision Denying Institution of Inter Partes
`
`Review (Paper 7, “Inst. Dec.”) of claims 1–24 of U.S. Patent No. 7,657,594
`
`B2 (Ex. 1001, “the ’594 patent”). We deny Petitioner’s Request for
`
`Rehearing for the reasons set forth below.
`
`II. STANDARD OF REVIEW
`
`When reconsidering a decision on institution, the Board reviews the
`
`decision for an abuse of discretion. See 37 C.F.R § 42.71(c). An abuse of
`
`discretion occurs if a decision is based on an erroneous interpretation of law,
`
`if a factual finding is not supported by substantial evidence, or if the
`
`decision represents an unreasonable judgment in weighing relevant factors.
`
`See Star Fruits S.N.C. v. U. S., 393 F.3d 1277, 1281 (Fed. Cir. 2005); Arnold
`
`P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004); In re Gartside, 203
`
`F.3d 1305, 1315–16 (Fed. Cir. 2000). “The burden of showing a decision
`
`should be modified lies with the party challenging the decision.”
`
`37 C.F.R § 42.71(d); accord Office Patent Trial Practice Guide, 77 Fed.
`
`Reg. 48,756, 48,768 (Aug. 14, 2012). In its request for rehearing, the
`
`dissatisfied party must, in relevant part, “specifically identify all matters the
`
`party believes the Board misapprehended or overlooked.” 37 C.F.R.
`
`§ 42.71(d); Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,768. We
`
`address Patent Owner’s arguments with these principles in mind.
`
`III. ANALYSIS
`
`Petitioner asserts that, in our Decision Denying Institution, we
`
`misread the Smith reference “in a way contradicting the reference’s
`
`disclosure, as well as Petitioner’s and Patent Owner’s stated understanding
`
`2
`
`
`
`IPR2017-01423
`Patent 7,657,594 B2
`
`of it.” Reh’g Req. 1. Petitioner argues that in denying institution, “the
`
`Board found that Smith did not disclose, teach, or suggest the claimed
`
`‘historic information [that] comprises network access information including .
`
`. . [the] number of previous network accesses by the network access device’
`
`of claim 1. Id. (citing Inst. Dec. 11–15). Petitioner argues the Board
`
`understood Smith as merely disclosing “[a] record of ‘user/server interaction
`
`during an Internet transaction, e.g.[,] a web page request and web page
`
`delivery,’ or ‘the network accesses required to complete’ such an Internet
`
`transaction.” Id. (quoting Inst. Dec. 14). Petitioner argues the Board found
`
`Smith’s log file was limited to network accesses during a single website
`
`interaction, when in fact “Smith discloses logging user activity beginning
`
`with the initial access of the Internet Service Provider (ISP) hub and the
`
`user’s logout from the ISP hub, i.e. the entirety of the user’s access of the
`
`Internet, rather than a single Internet transaction.” Id. (citing Ex.
`
`1003 ¶¶ 15, 35).
`
`Petitioner, however, fails to mention in its Request for Rehearing that
`
`Patent Owner disputed Petitioner’s argument about the scope of Smith’s
`
`disclosure. Prelim. Resp. 48–49. In our Decision Denying Institution, we
`
`explained that “Patent Owner argues that the ‘browse period log’ taught by
`
`Smith only provides user information from the user’s initial ISP access until
`
`the user’s ISP logout and does not teach the recited ‘previous network
`
`accesses by the network access device.’” Inst. Dec. 12–13. We also noted,
`
`“Patent Owner points out that Dr. Weissman never states that Smith’s
`
`disclosure of a ‘browse period log’—the portion of Smith cited by
`
`Petitioner—would indicate the ‘number of previous network accesses by the
`
`network access device,’ as recited by the independent claims. Id. at 13.
`
`3
`
`
`
`IPR2017-01423
`Patent 7,657,594 B2
`
`“Patent Owner argues that Dr. Weissman never explains how or why ‘the
`
`network accesses required to complete the transaction’ would refer to
`
`anything but network accesses from the user’s current browser session—not
`
`the previous network accesses by the network access device.” Id. (internal
`
`citations omitted).
`
`In our Decision Denying Institution, we observed “Dr. Weissman
`
`does not explain convincingly how the historic information for the user in
`
`such a session log [of Smith] would contain the ‘number of previous
`
`network accesses by the network access device,’ as recited by the
`
`independent claims.” Id. at 13–14. We concluded that
`
`[i]n light of Smith’s description of logging activity
`occurring “during the browse period,” Petitioner has not shown
`persuasive evidence of how a person of ordinary skill in the art
`would understand Smith to teach or suggest how such browsing
`period logging activity would create a record of the “number of
`previous network accesses by the network access device.”
`
`
`
`Id. at 14. Thus, we did not misapprehend Smith’s teachings as Petitioner
`
`alleges. Rather, we agreed with Patent Owner’s arguments that in light of
`
`the evidence of record the Petition failed to satisfy the institution threshold.
`
`Consequently, in its Request for Rehearing, Petitioner has failed to
`
`demonstrate that the Board’s findings with respect to Smith’s disclosure, or
`
`lack thereof, are not supported by substantial evidence.
`
`
`
`Accordingly, it is
`
`IV. ORDER
`
`ORDERED that the Petitioner’s Request for Rehearing is denied.
`
`
`
`
`
`4
`
`
`
`IPR2017-01423
`Patent 7,657,594 B2
`
`
`PETITIONER:
`
`Lionel M. Lavenue
`Cory Bell
`Robert High
`Sterling Waite
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`lionel.lavenue@finnegan.com
`cory.bell@finnegan.com
`robert.high@finnegan.com
`sterling.waite@finnegan.com
`
`Roshan Mansinghani
`UNIFIED PATENTS
`roshan@unifiedpatents.com
`
`
`PATENT OWNER:
`
`Lauren N. Robinson
`Craig Y. Allison
`BUNSOW DE MORY SMITH & ALLISON LLP
`lrobinson@diplaw.com
`callison@bdiplaw.com
`
`
`
`kis
`
`
`
`
`5
`
`
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