`571-272-7822
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`Paper 10
`Entered: March 29, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE LLC,
`Petitioner,
`
`v.
`
`UNILOC USA, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-02082
`Patent 7,535,890 B2
`____________
`
`
`Before JENNIFER S. BISK, MIRIAM L. QUINN, and
`CHARLES J. BOUDREAU Administrative Patent Judges.
`
`
`BISK, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
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`Patent 7,535,890 B2
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`I. INTRODUCTION
`Google LLC1, filed a Petition requesting inter partes review of claims
`1–6, 9, 10, 12, 14, 16–20, 23, 24, 26, 40–43, 46, 47, 49, 51–54, 57, 58, and
`60 of U.S. Patent No 7,535,890 B2, issued on May 19, 2009 (Ex. 1001, “the
`’890 patent”) pursuant to 35 U.S.C. §§ 311–319. Paper 2 (“Pet.”). Uniloc
`USA, Inc. filed a Preliminary Response. Paper 8 (“Prelim. Resp.”).
`Petitioner filed a Reply to Patent Owner’s Preliminary Response, upon
`authorization of the Board, to address Patent Owner’s arguments concerning
`application of the Board’s institution discretion under 35 U.S.C. §§ 314(a)
`and 325(d). Paper 9.
`Pursuant to 35 U.S.C. § 314(a), an inter partes review may not be
`instituted unless “the information presented in the petition . . . and any
`response . . . shows that there is a reasonable likelihood that the petitioner
`would prevail with respect to at least 1 of the claims challenged in the
`petition.” Having considered the Petition and the Preliminary Response, we
`determine that the information presented does not show that there is a
`reasonable likelihood that Petitioner would prevail in establishing the
`unpatentability of any of the challenged claims of the ’890 patent. For the
`reasons given below, we deny institution of an inter partes review.
`
`A. Related Matters
`Petitioner and Patent Owner represent that the ’890 patent is asserted
`in numerous actions before the U.S. District Court for the Eastern District of
`Texas, including actions filed against Petitioner (Case Nos. 2:17-cv-465,
`
`
`1 Subsequent to filing this Petition, Google, Inc. changed its name to Google
`LLC. Paper 5.
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`2:17-cv-466, 2:17-cv-467, 2:17-cv-231, 2:17-cv-224, 2:17-cv-214). Pet. 1–
`2; Paper 3, 2–3.
`In addition, the ’890 patent is the subject of several inter partes
`review proceedings before the Office. In IPR2017-00221, filed by Apple
`Inc., the Board instituted inter partes review of claims 1–6, 14, 15, 17–20,
`28, 29, 31–34, 40–43, 51–54, 62–65, and 68 of the ’890 patent on May 25,
`2017. Apple Inc. v. Uniloc USA, Inc., Case IPR2017-00221 (PTAB May 25,
`2017) (Paper 9). Moreover, on September 11, 2017—concurrent with this
`Petition—Petitioner filed IPR2017-02083 and IPR2017-02084, which
`challenge different subsets of claims of the ’890 patent. Google, Inc. v.
`Uniloc Luxembourg S.A., Cases IPR2017-02083, IPR2017-02084 (PTAB),
`Paper 2.
`The ’890 patent was also previously the subject of IPR2017-00220,
`IPR2017-01523, IPR2017-01524, and IPR2017-01802, in which the Board
`denied institution. See Apple, Inc. v. Uniloc USA, Inc., Case IPR2017-00220
`(PTAB)2, Paper 9; Facebook, Inc. v. Uniloc USA, Inc., Case IPR2017-
`01523, IPR2017-01524 (PTAB), Paper 7; Samsung Elecs. Am., Inc. v.
`Uniloc Luxembourg S.A., Case IPR2017-01802 (PTAB), Paper 8.
`
`A. The ’890 Patent
`The ’890 patent explains that “[v]oice messaging” and “instant text
`messaging” in both the Voice over Internet Protocol (“VoIP”) and public
`switched telephone network environments are known. Ex. 1001, 2:11–35.
`
`2 IPR2017-01612 filed by Snap Inc. and IPR2017-01636 filed by Facebook,
`Inc. and WhatsApp Inc. were joined with IPR2017-00221. See Snap Inc. v.
`Uniloc Luxembourg S.A., Case IPR2017-01612 (PTAB Oct. 3, 2017) (Paper
`11); Facebook, Inc. v. Uniloc Luxembourg S.A., Case IPR2017-01636
`(PTAB Oct. 3, 2017) (Paper 10).
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`In prior art instant text messaging systems, a server presents a user of a
`client terminal with a “list of persons who are currently ‘online’ and ready to
`receive text messages,” the user “select[s] one or more” recipients and types
`the message, and the server immediately sends the message to the respective
`client terminals. Id. at 2:23–35. According to the ’890 patent, however,
`“there is still a need in the art for . . . a system and method for providing
`instant VoIP messaging over an IP network,” such as the Internet. Id. at
`1:6–11, 2:36–48, 6:37–39.
`In one embodiment, the ’890 patent discloses local instant voice
`messaging (“IVM”) system 200, depicted in Figure 2 below. Id. at 6:12–14.
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`As illustrated in Figure 2, local packet-switched IP network 204,
`which may be a local area network (“LAN”), “interconnects” IVM clients
`206, 208 and legacy telephone 110 to local IVM server 202. Id. at 6:40–61;
`see id. at 7:13–14, 7:51–55. Local IVM server 202 enables instant voice
`messaging functionality over network 204. Id. at 7:53–55.
`In “record mode,” IVM client 208 “displays a list of one or more IVM
`recipients,” provided and stored by local IVM server 202, and the user
`selects recipients from the list. Id. at 7:47–49, 7:55–61. IVM client 208
`then transmits the selections to IVM server 202 and “records the user’s
`speech into . . . digitized audio file 210 (i.e., an instant voice message).” Id.
`at 7:61–8:1.
`
`When the recording is complete, IVM client 208 transmits audio file
`210 to local IVM server 202, which delivers the message to the selected
`recipients via local IP network 204. Id. at 8:5−19. “[O]nly the available
`IVM recipients, currently connected to . . . IVM server 202, will receive the
`instant voice message.” Id. at 8:23−25. IVM server 202 “temporarily saves
`the instant voice message” for any IVM client that is “not currently
`connected to . . . local IVM server 202 (i.e., is unavailable)” and “delivers it
`. . . when the IVM client connects to . . . local IVM server 202 (i.e., is
`available).” Id. at 8:24–29; see id. at 9:7–11. Upon receiving the instant
`voice message, the recipients can audibly play the message. Id. at 8:19–22.
`
`B. Illustrative Claim
`Of the challenged claims, claims 1, 12, 14, 26, 40, 49, 51, and 60 are
`independent. Claim 1 is illustrative of the claims at issue and is reproduced
`below:
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`1. An instant voice messaging system for delivering
`instant messages over a packet-switched network, the system
`comprising:
` a client connected to the network, the client selecting one
`or more recipients, generating an instant voice message
`therefor, and transmitting the selected recipients and the
`instant voice message therefor over the network; and
` a server connected to the network, the server receiving the
`selected recipients and the instant voice message
`therefor, and delivering the instant voice message to the
`selected recipients over the network, the selected
`recipients enabled to audibly play the instant voice
`message, and the server temporarily storing the instant
`voice message if a selected recipient is unavailable and
`delivering the stored instant voice message to the
`selected recipient once the selected recipient becomes
`available.
`Ex. 1001, 23:55–24:3.
`C. Grounds Asserted
`Petitioner asserts that the challenged claims would have been
`anticipated, under 35 U.S.C. § 102(b), by Zydney.3 Pet. 6. Petitioner also
`relies on a Declaration of Paul S. Min, Ph.D., filed as Exhibit 1003.
`
`II. ANALYSIS
`Claim Construction
`A.
`The Board interprets claim terms of an unexpired patent using the
`“broadest reasonable construction in light of the specification of the patent.”
`37 C.F.R. § 42.100(b). We presume a claim term carries its plain meaning,
`which is the meaning customarily used by those of skill in the relevant art at
`
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`3 PCT International Application Publication No. WO 01/11824 A2
`(published Feb. 15, 2001). Ex. 1004 (“Zydney”).
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`the time of the invention. Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1062
`(Fed. Cir. 2016).
`The parties agree that, for purposes of this Decision, no claim terms of
`the ’890 patent require an express construction. Pet. 9–10; Prelim. Resp. 20.
`We agree. See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co.
`Ltd., 868 F.3d 1013, 1017 (Fed. Cir. 2017); Vivid Techs., Inc. v. Am. Sci. &
`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (holding that only claim
`terms that “are in controversy” need to be construed and “only to the extent
`necessary to resolve the controversy”).
`B. Anticipation by Zydney
`Petitioner contends that Zydney anticipates claims 1–6, 9, 10, 12, 14,
`16–20, 23, 24, 26, 40–43, 46, 47, 49, 51–54, 57, 58, and 60 of the ’890
`patent. Pet. 10–58. Patent Owner disputes Petitioner’s anticipation
`assertions. Prelim. Resp. 19–26.
`Overview of Zydney
`1.
`Zydney discloses “a system and method for voice exchange and voice
`distribution” that allows software agent 22, in conjunction with central
`server 24, to “send, receive and store messages using voice containers.” Ex.
`1004,4 1, 10–11, Fig. 1A. In the disclosed “pack and send mode of
`operation,” the sender “selects one or more intended recipients,” and sending
`software agent 22 then “acquire[s], compresse[s,] and . . . store[s]” a
`“message . . . in a voice container[].” Id. at 11, 14; see id. at 14, Figs. 4, 6–
`7. Next, sending software agent 22 transmits the voice container over the
`Internet to the one or more recipient software agents 28, either directly or
`
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`4 We refer to the page numbers of the original document as opposed to those
`added by Petitioner.
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`indirectly through central server 24. Id. at 11; see id. at 1–2, 5, 12, 15–16,
`Fig. 1A. Each recipient software agent then “opens” or “unpack[s] the voice
`container and play[s] the message.” Id. at 13, 14.
`Zydney defines “[t]he term ‘voice container[]’” to “refer[] to a
`container object that contains no methods, but contains voice data or voice
`data and voice data properties.” Id. at 12. The “voice data properties
`components” include originator’s code 302, one or more recipient’s code
`304, originating time 306, delivery time(s) 308, number of plays 310, source
`312, reuse restrictions 314, delivery priority 322, session values 324, and
`repeating information 330. Id. at 23, Fig. 3. The voice container also
`contains “information concerning codec type, size, sample rate, and data.”
`Id. at 23.
`
`Discussion
`2.
`Each of the challenged claims require an “instant voice message.”
`Ex. 1001, 23:55–24:37, 28:21–29:16. Independent claims 1, 12, 14, and 26
`are directed to “[a]n instant voice messaging system for delivering instant
`messages over [a/a plurality of] packet-switched network[/s],” whereas
`independent claims 40, 49, 51 and 60 are directed to a corresponding
`“method for instant voice messaging over [a/a plurality of] packet-switched
`network[/s].” Id. at 23:55–57, 24:47–41, 25:21–23, 26:28–30, 28:21–22,
`30:8–10, 31:18–20. These claims recite numerous specific requirements for
`the claimed “instant voice message” regarding its generation at the client,
`transmission, receipt by the server, temporary storage, delivery from the
`server to selected recipients, and audible playback by the recipients. Id.
`Moreover, several of the challenged dependent claims feature additional
`requirements regarding the “instant voice message.” For example, claims 6,
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`20, 43, and 54 additionally recite that “the client records,” or the client
`“recording,” “the instant voice message in an audio file,” which is
`transmitted to and delivered by the server. Id. at 24:16–21, 25:65–26:2,
`28:51–59, 30:43–49. In addition, claims 9, 23, 46, and 57 require that “the
`client is enabled to attach,” or the client “attaching,” “one or more files to
`the instant voice message.” Id. at 24:34–36, 26:15–18, 29:11–14, 31:3–7.
`Petitioner argues that Zydney teaches the “instant voice message”
`recited in the challenged claims, including each of the particular
`requirements for this claim element. See generally Pet. 13–58. In the
`Petition and Dr. Min’s supporting Declaration, however, Petitioner
`interchangeably maps—without explanation—the “instant voice message”
`of the challenged claims to either (1) Zydney’s voice container or (2) the
`voice data or message that is stored in Zydney’s voice container.
`In other words, to meet the limitations of claim 1, Petitioner must
`show that an “instant voice message” is generated and transmitted by a
`client, received by a server, delivered to selected recipients, and stored
`temporarily on the server in certain circumstances. Ex. 1001, 23:58–24:3.
`Those recipients must be enabled to audibly play the “instant voice
`message.” Id. at 23:65–66. It is unclear, however, what structure in Zydney
`Petitioner relies on to show an instant message with all of these
`characteristics—Zydney’s voice container itself or the voice data stored
`within the voice container.
`For example, the Petition alleges that Zydney’s voice container
`qualifies as and equates to the claimed “instant voice message” in its
`analysis of “generating an instant voice message,” affirmatively representing
`that “Zydney’s ‘voice containers’ are the claimed ‘instant voice messages.’”
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`Id. at 16. However, in addressing the “receiving” limitation, the Petition
`expressly represents that “[w]hen the server is ‘uploading the voice
`container(s),’ the server is ‘receiving the . . . the instant voice message’
`contained in the voice container, just as claimed.” Id. at 19 (citing Ex. 1004,
`12, Fig. 8) (emphasis added). For the “audibly play” limitation, Petitioner
`explains that “Zydney explains that recipient software agents include
`functionality to ‘unpack the voice container and play the message.” Id. at 22
`(citing Ex. 1004, 25).
`Dr. Min’s Declaration suffers from the same problem. Like the
`Petition, Dr. Min’s testimony vacillates between identifying the “instant
`voice message” as Zydney’s voice container and the voice data or message
`stored therein, and Dr. Min fails to explain this inconsistent mapping of the
`claim element. E.g., compare Ex. 1003 ¶¶ 87–88, 104, 111, 135, 156, with
`id. ¶¶ 132, 162. For example, in addressing the “generating” limitation of
`independent claim 1, Dr. Min equates Zydney’s voice containers with the
`claimed “instant voice message”—testifying that “Zydney’s voice containers
`are instant voice messages . . . .” Id. ¶ 48. However, in addressing the
`“audibly play” limitation, Dr. Min relies on the same disclosure of Zydney,
`discussed above, that discusses unpacking the voice container and playing
`the message. Id. ¶ 58 (citing Ex. 1004, 13).
`The “instant voice message” claim element is central to the challenged
`claims, and the identity of the “instant voice message” is a critical
`component of Petitioner’s anticipation case. Yet Petitioner offers no
`explanation for mapping the recited “instant voice message” to different
`elements of Zydney throughout its analysis of the challenged claims in the
`Petition and Dr. Min’s Declaration. Specifically, Petitioner does not proffer
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`a construction of the claim term “instant voice message.” Pet. 9 (“Under
`these conditions, no express constructions are necessary. . . .”). Nor does
`Petitioner state that it is arguing in the alternative as to the alleged identity of
`the recited “instant voice message”—whether based on a claim interpretation
`or otherwise—or apply the alternative mappings of the “instant voice
`message” consistently throughout its analysis of each claim limitation that
`requires an “instant voice message.” Nor does Petitioner argue that the
`elements of Zydney to which the Petition maps the recited “instant voice
`message,” i.e., Zydney’s voice container and the voice data or message
`stored therein, are equivalent.
`In fact, Zydney’s voice container and the voice data or message stored
`therein are distinct in the context of Petitioner’s anticipation arguments. See,
`e.g., Ex. 1003 ¶ 41 (opining that “Zydney’s system allows a user . . . to
`locally record a voice message that is ‘stored in a voice container’”); Pet. 12
`(“Zydney describes two modes . . . where ‘the [entire] message is first
`acquired, compressed and then stored in a voice container (26).”). Zydney
`further explains that “[t]he term ‘voice container[]’ as used throughout this
`application refers to a container object that contains no methods, but
`contains voice data or voice data and voice data properties.” Ex. 1004, 12
`(emphases added). Zydney elaborates, and illustrates in Figure 3, that the
`“voice data properties components . . . include: “an originator’s code
`302 . . . , one or more recipient’s code 304, originating time 306, delivery
`time(s) 308, number of ‘plays’ 310, voice container source 312,” etc.
`Ex. 1004, 23, Fig. 3 (emphasis added); see id. at 34:4–8. According to
`Zydney, the voice container “[a]dditionally . . . will have information
`concerning codec type, size, sample rate, and data.” Ex. 1004, 23.
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`Even assuming that Zydney’s disclosures may be interpreted such that
`Zydney’s voice container could consist exclusively of the underlying voice
`data or message in the container—without any voice data properties or any
`other data or components—such a situation is not encompassed by
`Petitioner’s anticipation assertions. Rather, for the challenged independent
`claims—and also, therefore, all challenged dependent claims—Petitioner
`explicitly relies on Zydney’s voice container storing not only the underlying
`voice data or message but also “one or more recipient’s code 304,” i.e., a
`voice data properties component that identifies the selected recipients. Pet.
`17–18. Accordingly, in the context of Petitioner’s anticipation assertions for
`all challenged claims, Zydney’s voice container is distinct from—and does
`not equate to—the voice data or message stored in the voice container.
`It is not our role to pick a theory for Petitioner regarding the identity
`of the recited “instant voice message” in Zydney between the conflicting
`options presented without explanation in the Petition and Dr. Min’s
`Declaration, and then to apply that selected theory consistently in applying
`Zydney to the challenged independent and dependent claims where
`Petitioner has failed to do so. Cf. Schumer v. Lab. Comput. Sys., Inc., 308
`F.3d 1304, 1316 (Fed. Cir. 2002) (“It is not our task, nor is it the task of the
`district court, to attempt to interpret confusing or general testimony to
`determine whether a case of invalidity has been made out . . . .”). We will
`not, and cannot, piece together Petitioner’s inconsistent and contradictory
`arguments into a cogent and coherent explanation that supports anticipation.
`Rather, we must evaluate the Petition’s arguments as presented. See In re
`Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380–81 (Fed. Cir. 2016)
`(stating that the Board “must base its decision on arguments that were
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`advanced by a party, and to which the opposing party was given a chance to
`respond,” and is not “free to adopt arguments on behalf of petitioners”
`(citations omitted)).
`As a result of the deficiencies in Petitioner’s anticipation showing,
`outlined above, we deny institution of inter partes review on this asserted
`ground for two independent reasons. First, as detailed above, Petitioner
`inconsistently maps the recited “instant voice message” to different elements
`of Zydney without sufficient explanation for this incongruity. Thus,
`Petitioner has not established a reasonable likelihood of demonstrating that
`Zydney anticipates independent claims 1, 12, 14, 26, 40, 49, 51, and 60, as
`well as dependent claims 2–6, 9, 10, 16–20, 23, 24, 41–43, 46, 47, 52–54,
`57, and 58, of the ’890 patent.
`Second, the Petition’s arguments and supporting evidence regarding
`the recited “instant voice message” violate the statutory and regulatory
`requirements for a petition. Under 35 U.S.C. § 312(a)(3), a petition “may be
`considered only if . . . the petition identif[ies], in writing and with
`particularity, . . . the grounds on which the challenge to each claim is based,
`and the evidence that supports the grounds for the challenge to each claim”
`(emphasis added). As such, the U.S. Court of Appeals for the Federal
`Circuit has recognized that “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)
`(emphasis added) (citing 35 U.S.C. § 322(a)(3), which is equivalent to
`35 U.S.C. § 312(a)(3) other than that it applies to post-grant reviews).
`Our rules further address the showing required in a petition. In
`particular, 37 C.F.R. § 42.104(b)(4) provides that “[t]he petition must specify
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`where each element of the claim is found in the prior art patents or printed
`publications relied upon” (emphasis added). Moreover, 37 C.F.R.
`§ 42.104(b)(5) adds that the Petition must “identify[] specific portions of the
`evidence that support the challenge” (emphasis added). Similarly, 37 C.F.R.
`§ 42.22(a)(2) mandates that a petition include “[a] full statement of the
`reasons for the relief requested, including a detailed explanation of the
`significance of the evidence.”
`Here, given Petitioner’s unexplained inconsistent arguments and
`conflicting theories regarding the identity of the recited “instant voice
`message” in Zydney within its analysis of the challenged claims, the Petition
`lacks clarity regarding precisely which element or portion of Zydney
`Petitioner is alleging discloses the “instant voice message” of the challenged
`claims. The Petition, therefore, fails to “specify where each element of the
`claim is found in” Zydney for the challenged claims—in violation of 37
`C.F.R. § 42.104(b)(4). In addition, more generally, the Petition fails to
`identify and explain adequately the reasoning and evidence that supports its
`assertion of anticipation, as 35 U.S.C. § 312(a)(3), 37 C.F.R. § 42.22(a)(2),
`and 37 C.F.R. § 42.104(b)(5) require.
`In sum, the Petition fails to comply with the basic statutory and
`regulatory requirements for particularity of arguments and supporting
`evidence in a petition, as set forth in 35 U.S.C. § 312(a)(3), 37 C.F.R.
`§ 42.22(a)(2), and 37 C.F.R. § 42.104(b)(4)–(5). For this reason, as well as
`Petitioner’s failure to show a reasonable likelihood of establishing
`unpatentability, we deny institution of inter partes review of claims 1–6, 9,
`10, 12, 14, 16–20, 23, 24, 26, 40–43, 46, 47, 49, 51–54, 57, 58, and 60 of the
`’890 patent on the asserted ground of anticipation over Zydney.
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`III. CONCLUSION
`As explained in our analysis above, we determine that the information
`presented in the Petition does not establish a reasonable likelihood that
`Petitioner would prevail in showing that any of the challenged claims of the
`’890 patent—claims 1–6, 9, 10, 12, 14, 16–20, 23, 24, 26, 40–43, 46, 47, 49,
`51–54, 57, 58, and 60—are unpatentable. Moreover, the Petition fails to
`comply with the requirements set forth in 35 U.S.C. § 312(a)(3), 37 C.F.R.
`§ 42.22(a)(2), and 37 C.F.R. § 42.104(b)(4)–(5). Therefore, we do not
`institute an inter partes review of any of the challenged claims on any of the
`asserted grounds.
`
`IV. ADDITIONAL PATENT OWNER ARGUMENTS
`Patent Owner has advanced a variety of additional arguments
`concerning an alleged failure on the part of Petitioner to name all real
`parties-in-interest, 35 U.S.C. § 325(d), and the constitutionality of inter
`partes review proceedings. Prelim. Resp. 2–17, 26. We have considered
`those arguments, but in view of our determination not to institute trial on the
`basis of Petitioner’s substantive grounds, we do not address those arguments
`further herein.
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`IV. ORDER
`
`Accordingly, it is:
`ORDERED that pursuant to 35 U.S.C. § 314(a), the Petition is denied,
`and no trial is instituted as to any claim of U.S. Patent No. 7,535,890 B2.
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`PETITIONER:
`Jeffrey Miller
`jmillerptab@apks.com
`
`Michael Hawkins
`Kim Leung
`Patrick Bisenius
`Kenneth Darby
`Nicholas Stephens
`Fish & Richardson P.C.
`hawkins@fr.com
`leung@fr.com
`bisenius@fr.com
`kdarby@fr.com
`nstephens@fr.com
`
`
`PATENT OWNER:
`
`Brett Mangrum
`Sean Burdick
`Uniloc USA, Inc.
`Brett.mangrum@unilocusa.com
`Sean.burdick@unilocusa.com
`
`Ryan Loveless
`Etheridge Law Group
`ryan@etheridgelaw.com
`
`
`
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