Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper 12
`Entered: November 16, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CELLCO PARTNERSHIP D/B/A
`VERIZON WIRELESS
`Petitioner,
`
`v.
`
`BRIDGE AND POST, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-02046
`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
`
`
`
`
`Paper 12
`Entered: November 16, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CELLCO PARTNERSHIP D/B/A
`VERIZON WIRELESS
`Petitioner,
`
`v.
`
`BRIDGE AND POST, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-02046
`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
`
`
`
`
`
`
`
`
`
`IPR2017-02046
`Patent 7,657,594 B2
`
`
`I. INTRODUCTION
`
`Cellco Partnership D/B/A Verizon Wireless (“Petitioner”) filed a
`
`Request for Rehearing (Paper 9, “Reh’g Req.”) of our Decision Denying
`
`Institution of Inter Partes Review (Paper 8, “Inst. Dec.”) of claims 1–24 of
`
`U.S. Patent No. 7,657,594 B2 (“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. United States, 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.
`
`III. ANALYSIS
`
`Petitioner asserts, “the Board implicitly construed ‘network access’ as
`
`limited to network access granted by an ISP, more narrowly than Petitioner
`
`suggested.” Reh’g Req. 1. In doing so, Petitioner argues, “the Board abused
`
`2
`
`
`
`IPR2017-02046
`Patent 7,657,594 B2
`
`its discretion by rejecting the Petitioner’s evidence that the prior art taught
`
`‘network access’ in the form of requests over a network for content from a
`
`web server using a URL.” Id. Petitioner asserts, “the Board erred in
`
`concluding that the challenged claims “separately recite, and therefore,
`
`distinguish between, ‘a request from the user to access a content provider
`
`web site’ and ‘network access.’” Id. at 2. Petitioner argues, “[n]othing in
`
`the plain meaning of the language, or in the logic, of the claims supports the
`
`distinction drawn by the Board.” Id. at 3.
`
`Petitioner also asserts the Board’s construction “is inconsistent with
`
`the specification’s broad description of network access information.” Id. at
`
`6. Petitioner argues, “a URL request is a type of “network access” because
`
`the request is for access by a networked device, over the Internet via a
`
`network link.” Id. at 8. Petitioner further argues the Board misapprehended
`
`the prior art and Petitioner’s explanation of it. See Reh’g Req. 7–10.
`
`As noted above, 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. United States, 393
`
`F.3d at 1281. Although Petitioner casts its argument in terms that the Board
`
`“abused its discretion,” “misapprehended,” “overlooked,” “erred,” “is
`
`inconsistent,” or “erroneous,” with respect to the claim language, the
`
`specification, or the prior art, the crux of Petitioner’s argument stems from
`
`its assertion that “the Board implicitly construed ‘network access’ as limited
`
`to network access granted by an ISP, more narrowly than Petitioner
`
`suggested” and “[i]n so doing, abused its discretion by rejecting the
`
`Petitioner’s evidence that the prior art taught “network access” in the form
`
`3
`
`
`
`IPR2017-02046
`Patent 7,657,594 B2
`
`of requests over a network for content from a web server using a URL.” See
`
`Reh’g Req. 1.
`
`What Petitioner describes, however, is not an “abuse of discretion,”
`
`but rather our determination based on the evidence and the ordinary and
`
`customary meaning of the term “network access.” As we explained in our
`
`Decision Denying Institution of Inter Partes Review, consistent with the
`
`“broadest reasonable construction” standard, “we assign 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 the context of the entire patent
`
`disclosure.” Inst. Dec. 6 (citing In re Translogic Tech., Inc., 504 F.3d 1249,
`
`1257 (Fed. Cir. 2007)).
`
`In our Decision Denying Institution of Inter Partes Review, we noted,
`
`“Petitioner, however, appears to conflate, and therefore, blur the distinction
`
`between, the recited “request from the user to access a content provider web
`
`site” and “network access.” Inst. Dec. at 13. There, we stated,
`
`sufficient
`[t]hus, Petitioner asserts, without
`explanation and factual support, that by simply
`counting URL requests (Uniform Resource Locator
`requests, i.e. requested web page or web site
`addresses), a POSA would be able to determine the
`number of previous network accesses. Petitioner,
`however, provides no factual basis or rationale for
`equating a user’s URL request for a web page with
`network access granted by an ISP, nor does
`Petitioner explain how “simply counting” the
`number of URL requests made by a user provides
`the number of previous network accesses granted by
`an ISP to the network access device.
`
`Id. at 14.
`
`
`We pointed out that the ’594 Specification explains,
`
`4
`
`
`
`IPR2017-02046
`Patent 7,657,594 B2
`
`
`[u]nlike much of the prior art where users of
`computing devices are tracked through cookies on
`their computing devices or sites the users visit over
`the Internet, users of the present embodiment can be
`identified and their preferences determined and
`tracked through a user's act of logging onto a
`network 130 or obtaining network service through
`a service provider 120.
`
`Id. at 12 (citing Ex. 1001, 3:10–16 (emphasis added)).
`
`We went on to point out that the ’594 Specification also explains,
`
`a user activates the network access device 110 in
`order to communicate with the network 130.” Ex.
`1001, 3:24–25. “The service provider 120 is a
`device configured to provide the network access
`device 110 access to the communications network
`130.” Id. at 3:46–48 (emphasis added). “The
`service provider 120 is typically controlled by a
`business that supplies network connectivity (e.g.
`Internet service provider, ‘ISP’).
`
`Id. at 1213 (citing Ex. 1001, 3:50–52).
`
`We further explained,
`
`[t]he flow chart depicted in Figure 6 of the ’594
`Patent shows that after the user accesses the
`network, the user then requests content provider
`page(s). Id. at Fig. 6. The ’594 Specification
`explains that these content providers may be web
`sites, e-mailers, or file transport (FTP) sites. Id. at
`3:59–61. The ’594 Specification explains that
`“[t]ypically, the user will request access to a
`particular content provider.” Id. at 8:18–19. “The
`content provider 140 then provides the requested
`content to the requesting user.”
`
`Id. at 13 (citing Ex. 1001, 8:54–55; see Fig. 5).
`
`We concluded by stating,
`
`5
`
`
`
`IPR2017-02046
`Patent 7,657,594 B2
`
`
`[i]ndependent Claims 1, 15, and 24 separately
`recite, and therefore, distinguish between, “a
`request from the user to access a content provider
`web site” and “network access.” These claims also
`require that the historic information retrieved for the
`user include “times and locations of network access
`and number of previous network accesses by the
`network access device.
`
`Id. (citing Ex. 1001, cols 12–14 (emphasis added)).
`
`Thus, in light of this record, we are unpersuaded that we erred.
`
`Instead, our decision was based on a reasoned analysis of the evidence and
`
`applied the ordinary and customary meaning of the term “network access,”
`
`as would be understood by one of ordinary skill in the art at the time of the
`
`invention, in the context of the entire patent disclosure.
`
`Therefore, Petitioner has failed to establish persuasively, that our
`
`decision not to institute an inter partes proceeding was based on an
`
`erroneous interpretation of law, not supported by substantial evidence, or an
`
`unreasonable judgment weighing relevant factors.
`
`IV. ORDER
`
`Accordingly, it is
`
`ORDERED that Petitioner’s Request for Rehearing is denied.
`
`
`
`
`
`6
`
`
`
`IPR2017-02046
`Patent 7,657,594 B2
`
`
`PETITIONER:
`
`Jay I. Alexander
`Andrea G. Reister
`Peter Chen
`COVINGTON & BURLING LLP
`jalexander@cov.com
`areister@cov.com
`pchen@cov.com
`
`
`PATENT OWNER:
`
`Lauren N. Robinson
`Craig Y. Allison
`BUNSOW DE MORY LLP
`lrobinson@bdiplaw.com
`callison@bdiplaw.com
`
`
`7
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
