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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_________________
`
`GOOGLE LLC
`Petitioner
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`v.
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`IPA TECHNOLOGIES INC.
`Patent Owner
`
`_________________
`
`IPR2018-00476
`Patent No. 6,757,718
`_________________
`
`PETITIONER’S REQUEST FOR REHEARING AND
`SUGGESTION FOR REHEARING BY AN EXPANDED PANEL
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`
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`IPR2018-00476
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`TABLE OF CONTENTS
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`I.
`Introduction and Relief Requested .................................................................. 1
`Legal Standard ................................................................................................. 2
`II.
`III. Reasons That Rehearing Is Warranted ............................................................ 3
`A.
`The Decision Overlooked And/Or Misapprehended Central
`Facts Related to Google’s Showing on the Public Accessibility of
`Cheyer.................................................................................................... 3
`1.
`The Record (Including Ex. 1031, Which the Decision
`Did Not Address) Shows Cheyer Was Available on SRI’s
`Website ......................................................................................... 3
`The Decision Overlooked Facts Concerning the
`Significance of Moran and Its Instructions to Review
`Cheyer on SRI’s Website ............................................................. 5
`The Decision Overlooked the Level of Skill in the Art in
`Finding a POSITA (Here, a Computer Scientist or Engineer)
`Would Be Unable to Find an Article on a Website with
`Reasonable Diligence ................................................................... 6
`The Decision Misapprehended the Controlling Case Law in
`the Public Availability Analysis of a Printed Publication..................... 8
`1. Moran Is a “Research Aid” That Establishes the Public
`Availability of Cheyer .................................................................. 9
`The Decision’s Focus on Whether Cheyer Was Indexed
`or Ever Downloaded Misapprehended the Law ......................... 12
`IV. Google Suggests Rehearing by an Expanded Panel That Includes
`the Chief Judge .............................................................................................. 14
`Conclusion ..................................................................................................... 15
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`2.
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`3.
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`B.
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`2.
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`V.
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`
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`i
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`
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`TABLE OF AUTHORITIES
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`IPR2018-00476
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` Page(s)
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`Cases
`Blue Calypso, LLC v. Groupon, Inc.,
`815 F.3d 1331 (Fed. Cir. 2016) ............................................................ 1, 9, 10, 11
`Bruckelmyer v. Ground Heaters, Inc.,
`445 F.3d 1374 (Fed. Cir. 2006) ............................................................................ 9
`Creston Electronics., Inc. v. Intuitive Building Controls, Inc.,
`IPR2015-01379, Paper No. 16 (Dec. 15, 2015) ........................................ 8, 13, 14
`Electronic Arts Inc. v. White Knuckle IP, LLC,
`IPR2015-01595, Paper No. 38 (Jan. 12, 2017) ......................................... 2, 11, 14
`In re Hall,
`781 F.2d 897 (Fed. Cir. 1986) .............................................................................. 8
`Jazz Pharm., Inc. v. Amneal Pharm., LLC,
`No. 2017-1671, 2018 WL 3400764 (Fed. Cir. July 13, 2018) ............................. 4
`In re Klopfenstein,
`380 F.3d 1345 (Fed. Cir. 2004) .......................................................................... 12
`Kyocera Wireless Corp. v. International Trade Commission,
`545 F.3d 1340 (Fed. Cir. 2008) ............................................................................ 8
`Mipox Corp. v. International Test Solutions, Inc.,
`IPR2017-00937, Paper No. 9 (Sept. 11, 2017) ............................................. 11, 14
`RedMed Ltd. v. Fisher & Paykel Healthcare Ltd.,
`IPR2016-01723, Paper No. 11 (Mar. 9, 2017) ..................................................... 4
`In re Rouffet,
`149 F.3d 1350 (Fed. Cir. 1998) ............................................................................ 5
`
`SRI Internationall Inc. v. Internet Security Systems, Inc.
`511 F.3d 1186 (Fed. Cir. 2008) ...................................................................... 7, 13
`Suffolk Technologies., LLC v. AOL, Inc.,
`752 F.3d 1358 (Fed. Cir. 2014) .......................................................................... 12
`
`
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`ii
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`IPR2018-00476
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`Voter Verified, Inc. v. Premier Election Solutions., Inc.,
`698 F.3d 1374 (Fed. Cir. 2012) .......................................................................... 12
`Other Authorities
`37 C.F.R. § 42.71(d) .............................................................................................. 2, 3
`35 U.S.C.§ 102(b) ...................................................................................................... 8
`
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`iii
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`IPR2018-00476
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`I.
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`INTRODUCTION AND RELIEF REQUESTED
`Petitioner Google LLC (“Google”) requests rehearing of the Board’s July
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`20, 2018 decision (“Decision”) declining to institute review of claims 1-27 of U.S.
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`Patent No 6,757,718 (“the ’718 patent”). The Decision hinges on a
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`misapprehension of (1) Google’s basis for asserting that Cheyer (Ex. 1012)
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`qualifies as prior art, and (2) controlling Federal Circuit precedent regarding the
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`legal requirements for “public availability.”
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`Google explained that Cheyer was published “on the SRI website by at least
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`1997,” (Pet. at 4) based on two core points: (1) archived copies of SRI’s website
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`in 1997 showing Cheyer was available for viewing (Ex. 1031) in addition to a link
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`that was provided to download it (Ex. 1030); and (2) another pre-critical date
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`publication (Ex. 1029, “Moran”), in which the inventors and other authors cited to
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`Cheyer and directed the public to SRI’s website to review it (Pet. at 3–4). The
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`evidence on these two points alone establishes Cheyer as a printed publication by
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`1997. As the Federal Circuit explained in the Blue Calypso case cited in the
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`Decision, a “published article with an express citation to the potentially
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`invalidating reference would” provide “a skilled artisan with a sufficiently definite
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`roadmap” to establish the reference is a printed publication. Blue Calypso, LLC v.
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`Groupon, Inc., 815 F.3d 1331, 1350 (Fed. Cir. 2016) (emphasis added). And as
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`the Board has recognized, “[d]ocumentary evidence generated by the Wayback
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`1
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`IPR2018-00476
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`Machine generally has been accepted as prior art in patent cases.” Elec. Arts Inc.
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`v. White Knuckle IP, LLC, IPR2015-01595, Paper No. 38 at 11-12 (Jan. 12, 2017).
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`Unfortunately, the Decision followed Patent Owner’s invitation to error by
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`focusing on other evidence of publication and finding those additional items
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`individually insufficient. Whether these other items (which, in fact, corroborate
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`the above publication) show Cheyer was published in 1995 or 1996 has no bearing
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`on whether Cheyer was published in 1997 as shown by Google.
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`The evidence shows that, in 1997, Cheyer was available on SRI’s website
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`and Moran was published, cited to Cheyer, and directed skilled artisans to SRI’s
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`website to access Cheyer. In addition, it is undisputed that a POSITA would have
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`had a degree in computer science or electrical engineering and professional
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`experience with computer systems—a level of skill Patent Owner acknowledges
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`but the Decision never addresses. Under controlling Federal Circuit authority, it is
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`beyond dispute that such a trained professional, instructed by Moran to look at an
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`article on a section of a website, could have found that article. At a minimum, the
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`record warrants institution to enable further development of this issue during trial.
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`Moreover, given the importance of the publication issue to PTAB practice, the
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`Decision warrants rehearing by an expanded panel, including the Chief Judge.
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`II. LEGAL STANDARD
`“A party dissatisfied with a decision may file a request for rehearing.” 37
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`2
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`IPR2018-00476
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`C.F.R. § 42.71(d). “The request must specifically identify all matters the party
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`believes the Board misapprehended or overlooked, and the place where each
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`matter was previously addressed in a motion, an opposition, or a reply.” Id.
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`III. REASONS THAT REHEARING IS WARRANTED
`A. The Decision Overlooked And/Or Misapprehended Central Facts
`Related to Google’s Showing on the Public Accessibility of Cheyer
`The Decision either overlooked or misapprehended several facts related to
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`Google’s contention that Cheyer was publicly accessible at least as early as 1997.
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`1. The Record (Including Ex. 1031, Which the Decision Did Not
`Address) Shows Cheyer Was Available on SRI’s Website
`Google submitted copies of pages from SRI’s website from the Internet
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`Archive showing Cheyer was available in multiple forms in 1997. First, Exhibit
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`1030 lists Cheyer (“Multimodal Maps: An Agent-based Approach”) and includes a
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`link for downloading Cheyer in 1997 and from where Google in fact downloaded
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`the copy submitted with its petition. See Ex. 1030 at 1. Second, Exhibit 1031 is an
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`HTML version of Cheyer that was available on SRI’s website in 1997. See Ex.
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`1031; Pet. at 4 (“a full viewable copy of Cheyer was made available at SRI’s
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`website at least as early as 1997,” citing Ex. 1031 at 1-22).
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`The Decision never addresses Exhibit 1031 even though the public could
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`access this version of Cheyer on the AI section of SRI’s website in 1997, e.g., after
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`having been directed to that section of SRI’s website by Moran as addressed
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`below. Viewing Exhibit 1031 in the context of all the evidence demonstrates more
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`3
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`IPR2018-00476
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`than a reasonable likelihood that Cheyer was publicly accessible by 1997.1 See
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`Jazz Pharm., Inc. v. Amneal Pharm., LLC, No. 2017-1671, 2018 WL 3400764, at
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`*8 (Fed. Cir. July 13, 2018) (holding that even a two-month period of availability
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`on a website “supports the Board’s public accessibility finding”).
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`Indeed, Exhibits 1030 and 1031 are particularly significant given that they
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`are associated with the co-inventors and original Patent Owner (Ex. 1001 at
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`Cover). See RedMed Ltd. v. Fisher & Paykel Healthcare Ltd., IPR2016-01723,
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`Paper No. 11 at 9 (Mar. 9, 2017) (“We do not find [an argument about a lack of
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`clarity as to a reference’s publication date], coming from the party that produced
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`the [reference] and presumably knows when it was published, to be credible.”).
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`1 The 1997 HTML version archived in Exhibit 1031 is a verbatim copy of Cheyer,
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`save for one updated citation and a total four non-substantive word changes (e.g.,
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`inserting “to” to fix a typo, changing “HTML format” to “HTML form”). While
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`the printed version of Exhibit 1031 does not include Cheyer’s Introduction, it is
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`available at Exhibit 1031’s cited Internet Archive URL and the HTML version’s
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`substance is otherwise identical to Cheyer’s. Google cited to the non-HTML
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`version merely because it is more legible. Indeed, neither the Decision nor Patent
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`Owner pointed to any substantive difference between Exhibit 1031 and Cheyer.
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`4
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`IPR2018-00476
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`2. The Decision Overlooked Facts Concerning the Significance of
`Moran and Its Instructions to Review Cheyer on SRI’s Website
`The Decision also overlooked several points relating to Moran (Ex. 1029).
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`As a threshold matter, the Decision misidentified Moran’s authors, overlooking the
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`non-SRI author. Compare Decision at 14 with Ex. 1029 at 3 (identifying “Sangkyu
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`Park” of the E.T.R.I. as an author). Thus, the Decision’s conclusion that Moran’s
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`citation to Cheyer “establishes only that those [SRI individuals] were aware of
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`their own paper” is erroneous. More fundamentally, the Decision overlooked
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`Moran’s status as a printed publication in 1997. Ex. 1029 at 1-2. As such,
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`Moran’s citation to Cheyer was not known only to its authors, but rather was
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`disseminated to the public—including a POSITA—at least as early as Moran’s
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`publication in 1997. See In re Rouffet, 149 F.3d 1350, 1357 (Fed. Cir. 1998)
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`(“The legal construct [of a POSITA] presumes that all prior art references in the
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`field of the invention are available to this hypothetical skilled artisan.”).
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`The Decision overlooked Moran’s relevance to a POSITA’s knowledge of
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`and ability to find Cheyer in 1997—including on the SRI website that Moran
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`points to and that was archived in Exs. 1030 and 1031. See Ex. 1029 at 10; Pet. at
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`3-4. Instead, the Decision focused on a reference to a 1995 conference in Moran’s
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`citation to Cheyer and whether Moran proves Cheyer was published in 1995.
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`Whether Moran alone proves Cheyer was published at a conference in 1995
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`5
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`IPR2018-00476
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`is beside the point.2 While Moran suggests as much, this is irrelevant to whether
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`Moran’s citation to Cheyer at SRI’s website would have enabled a POSITA in
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`1997 to locate one of the copies of Cheyer on that website, which Exhibits 1030
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`and 1031 show were available. Even if the Board was not persuaded that Cheyer
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`was published in 1995, such earlier evidence reinforces the evidence discussed
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`above that Cheyer was published by 1997.3
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`3. The Decision Overlooked the Level of Skill in the Art in
`Finding a POSITA (Here, a Computer Scientist or Engineer)
`Would Be Unable to Find an Article on a Website with
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`2 The facts that Google explained in its Petition (Pet. at 3-4) regarding the CMC/95
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`conference further corroborate the public availability of Cheyer in 1997.
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`Specifically, the identification of a specific 1995 conference in connection with
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`Cheyer—in Moran’s citation (in 1997) to Cheyer (Ex. 1029 at 10) and also on
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`SRI’s website in 1997—corroborates the 1997 publication of Cheyer. The
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`Decision’s focus on whether this evidence establishes that Cheyer was published in
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`1995 thus does not resolve the relevant inquiry. See Pet. at 3-4 (explaining that
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`Cheyer “was publicly disseminated at the CMC/95 conference in 1995 and was in
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`any event made available on the SRI website by at least 1997”) (emphasis added).
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`3 Indeed, by including Cheyer as a citation in Moran with a 1995 date, the authors
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`of Cheyer, who were also co-authors of Moran (and also co-inventors of the ’718
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`patent), clearly regarded Cheyer as being publicly available by at least that date.
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`6
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`IPR2018-00476
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`Reasonable Diligence
`The Decision notes that the question of public accessibility is assessed from
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`the perspective of persons “ordinarily skilled in the subject matter or art exercising
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`reasonable diligence.” Decision at 8. But the Decision does not mention the
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`capabilities of a POSITA or address the level of skill in the art in its analysis.
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`Google presented evidence that a POSITA would have “at least a Bachelor’s
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`degree in computer science, electrical engineering, or a similar discipline” and
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`“one to two years of work experience” with computer interfaces, networks, or a
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`related field. See Ex. 1002 ¶ 14. That evidence is unrebutted. See Prel. Resp. at 2.
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`Despite this evidence and the Federal Circuit having observed SRI to be “a
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`well-known institution,” SRI Int’l Inc. v. Internet Sec. Sys., Inc. 511 F.3d 1186,
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`1197 (Fed. Cir. 2008), the Decision dismissed Moran’s citation to Cheyer, stating:
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`Petitioner fails to provide testimonial or other evidence that the
`link provided in [Moran] actually worked at the relevant time
`period, what content was included at the linked website, [or]
`how one would find Cheyer after selecting the link . . . .
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`Decision at 15. On their face, Exhibits 1030 and 1031 disclose Cheyer was
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`available on the AI section of SRI’s website (www.ai.sri.com), and it is undisputed
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`that Moran directed artisans to the same section of SRI’s website (www.ai.sri.com)
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`to review Cheyer. See Ex. 1029 at 10, n.2. Thus, the Decision effectively hinges
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`on the notion that a professional computer scientist or engineer directed to find an
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`7
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`IPR2018-00476
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`article on a section of a website would have been unable to do so with reasonable
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`diligence and the supposition that SRI’s Artificial Intelligence group’s website
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`might not have worked as intended and shown in Exhibits 1030 and 1031. To the
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`extent this is even a theoretical possibility, it is a question best resolved at trial.
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`In addition, the Decision overlooked that the archiving of Exhibits 1030 and
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`1031 itself is evidence of public accessibility. See Creston Elecs., Inc. v. Intuitive
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`Building Controls, Inc., IPR2015-01379, Paper No. 16 at 14 (Dec. 15, 2015) (“it is
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`reasonably likely that web pages locatable by crawlers of the Wayback Machine
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`would be locatable to interested persons using typical search engines”).
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`B.
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`The Decision Misapprehended the Controlling Case Law in the
`Public Availability Analysis of a Printed Publication
`The Decision states: “the alleged ‘instructions’ on how to retrieve Cheyer
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`included in the citation in Moran, do not persuade us that Cheyer was publicly
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`accessible.” Decision at 15. In addition to the facts above, the Decision
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`misapprehended the Federal Circuit’s controlling legal framework.
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`The “touchstone” of whether a reference is a printed publication under
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`§ 102(b) is “public accessibility.” See In re Hall, 781 F.2d 897, 898–99 (Fed. Cir.
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`1986). A reference is publicly accessible if it is “disseminated or otherwise made
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`available to the extent that persons interested and ordinarily skilled in the subject
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`matter or art exercising reasonable diligence, can locate it.” Kyocera Wireless
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`Corp. v. Int’l Trade Comm’n, 545 F.3d 1340, 1350 (Fed. Cir. 2008).
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`8
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`IPR2018-00476
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`The Decision focused on factors that are not prerequisites to showing public
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`availability while ignoring one factor that establishes it. In particular, the Decision
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`focused on whether Cheyer was “indexed” or “ever downloaded,” conditions that
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`are not necessary for public availability. Decision at 16–17. But the Decision
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`ignored the most relevant factor here—the presence of Moran as a “research aid,”
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`which the Federal Circuit has recognized establishes public availability.
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`1. Moran Is a “Research Aid” That Establishes the Public
`Availability of Cheyer
`A “research aid” is a publication that would have led skilled artisans to the
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`reference in question. See Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331,
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`1350 (Fed. Cir. 2016). Other factors aside, the “presence of a ‘research aid’ can . . .
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`establish public accessibility.” See id. For example, in Bruckelmyer v. Ground
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`Heaters, Inc., 445 F.3d 1374, 1379 (Fed. Cir. 2006), the Federal Circuit held an
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`issued foreign patent was a “research aid” that established the public availability of
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`its foreign application, even though the application was not cataloged or indexed.
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`See id. at 1379 (“[I]t does not matter whether the . . . application was catalogued or
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`indexed . . . because the [] patent was indexed and could serve as a research aid.”).
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`Relevant here, in Blue Calypso, the Federal Circuit addressed whether a
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`published article (i.e., Moran) could establish the public availability of a “report
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`available via a hyperlink on the personal webpage that [published article’s author]
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`maintained while she was a student at UMBC” (i.e., Cheyer). See Blue Calypso,
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`9
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`815 F.3d at 1348, 1350. Like Moran, the article in Blue Calypso had the same co-
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`authors as the reference and “related to the same research.” See id. at 1350.
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`The Federal Circuit explained that such published articles can establish
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`public availability of another reference when “they provide a skilled artisan with a
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`sufficiently definite roadmap leading to” the other reference. See id. Explaining
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`further, “[a]n adequate roadmap need not give turn-by-turn directions, but should
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`at least provide enough details from which [one] can determine that an interested
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`party is reasonably certain to arrive at the destination: the potentially invalidating
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`reference.” See id. Important here, the Federal Circuit explained:
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`[A] published article with an express citation to the potentially
`invalidating reference would similarly provide the necessary
`guidance [to establish the public availability of that reference].
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`Id. (emphasis added and citation omitted). In view of Blue Calypso, there can be
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`no reasonable dispute that Moran is a “research aid” that establishes the public
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`availability of Cheyer.
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`
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`First, like the article in Blue Calpyso, Moran was published in 1997 (Pet. at
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`3; Ex. 1029 at 1, 2), has similar authors to Cheyer, and relates to the same research
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`(Decision at 14; Prel. Resp. at 38) and, unlike Blue Calypso, Moran includes an
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`explicit citation to Cheyer. Second, Google provided unrebutted evidence that
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`Moran “includes instructions on how to retrieve Cheyer” at SRI’s website. Pet. at
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`3; Ex. 1029 at 10. Third, Google submitted unchallenged evidence that an HTML
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`10
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`version of Cheyer was available at SRI’s website, as was a link for downloading
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`Cheyer that still works today. See Pet. at 4; Exs. 1030, 1031; Elec. Arts, IPR2015-
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`01595, Paper No. 38 at 11-12 (“[d]ocumentary evidence generated by the Wayback
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`Machine generally has been accepted as prior art”); Mipox Corp. v. Int’l Test
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`Solutions, Inc., IPR2017-00937, Paper No. 9 at 12 (Sept. 11, 2017) (“the
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`availability of [references] on Patent Owner’s website, as evidenced by their
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`having been archived by the Wayback Machine, demonstrates the documents ‘were
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`publically accessible and qualify as prior art printed publications because they
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`were sufficiently accessible to the public interested in the art’”).
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`
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`In short, Moran, through its express citation to Cheyer, provides a sufficient
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`roadmap to skilled artisans on how to access Cheyer. Thus, Moran acts as a
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`“research aid” and itself establishes the public availability of Cheyer.4
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`4 In Blue Calypso, a published article did not serve as a “research aid” for a
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`reference linked on a personal webpage belonging to and maintained by a student
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`who authored the article because—unlike Moran—the article did not cite to the
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`reference or the student’s personal page. 815 F.3d at 1350. At best the article led
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`to a different website and there was “no evidence that an interested party could
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`navigate from that website to [the author’s] personal page, whether through a direct
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`link or a chain of links, to access the . . . Reference.” Id. This differs greatly from
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`11
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`2. The Decision’s Focus on Whether Cheyer Was Indexed or Ever
`Downloaded Misapprehended the Law
`As discussed above, the Decision overlooked the importance of Moran as a
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`“research aid.” Even as to the case law it discussed, the Decision misapprehended
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`the printed publication inquiry for Cheyer in two main ways.
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`First, even if Cheyer was not indexed on the Internet, that does not mean it
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`was not publicly available. Contrary to Patent Owner and the Decision, see
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`Decision at 16; Prel. Resp. at 32-33, the Federal Circuit has explained “indexing is
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`not an absolute prerequisite to establishing online references . . . as printed
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`publications.” Voter Verified, Inc. v. Premier Election Sols., Inc., 698 F.3d 1374,
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`1380 (Fed. Cir. 2012); In re Klopfenstein, 380 F.3d 1345, 1348 (Fed. Cir. 2004)
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`(“key inquiry” is “public accessib[ility],” not “distribution and/or indexing”).
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`Indeed, in Voter Verified, a website article was found to be publicly
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`accessible “[w]hether or not the website itself had been indexed by 1999 (through
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`search engines or otherwise)” because evidence showed a POSITA would have
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`been aware of the website, and could have located the article “using that website’s
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`own search functions and applying reasonable diligence.” 698 F.3d at 1381.
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`Similarly, in Suffolk Techs., LLC v. AOL, Inc., 752 F.3d 1358, 1365 (Fed. Cir.
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`Moran, which cited to (1) Cheyer and (2) the website where it could be accessed—
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`the website of a well-known research institution, not a student’s personal webpage.
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`12
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`2014), a newsgroup post that was neither indexed nor searchable was held publicly
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`available because “dialogue with the intended audience was the entire purpose of
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`the newsgroup postings,” and a handful of anonymous users responded to the post.
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`Moreover, the fact that Cheyer was archived by the Internet Archive indicates that
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`it was in fact indexed. See Creston Elecs., IPR2015-01379, Paper No. 16 at 14.
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`Second, contrary to the Decision’s suggestion that public accessibility
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`requires actual download of the reference, see Decision at 16, the Federal Circuit
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`has explained: “actual retrieval of a publication is not a requirement for public
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`accessibility.” See SRI Int’l, 511 F.3d at 1197 (emphasis added). Rather, the
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`inquiry focuses on whether the public could access the reference.
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`For example, in SRI, factual issues precluded summary judgment of
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`invalidity because an article was only posted on SRI’s FTP site for seven days, the
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`link to the article was given only to one person in an e-mail for peer-review, the
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`article was not catalogued or indexed on SRI’s FTP site, and, thus, there was “no
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`intent to publicize” the article. 511 F.3d at 1196–97. Yet, because SRI (the same
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`institution hosting Cheyer for more than 20 years, as opposed to seven days) was a
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`“well-known institution,” and the FTP site was open to the public, the Federal
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`Circuit remanded for further fact-finding as to whether the article was “publicly
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`available.” See id. Here, there is no question that the authors intended to publicize
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`Cheyer, took numerous steps with SRI to do so; and, by their citation in Moran,
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`understood they published Cheyer and told skilled artisans where to find it.
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`IV. GOOGLE SUGGESTS REHEARING BY AN EXPANDED PANEL
`THAT INCLUDES THE CHIEF JUDGE
`Google suggests that an expanded panel that includes the Chief Judge
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`consider this request for rehearing for at least three reasons. See Std. Op. Proc. 1,
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`Rev. 14, Sections III.C–D. First, an expanded panel is necessary because the
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`Decision “conflicts with . . . an authoritative decision of the Board’s reviewing
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`courts.” See Std. Op. Proc. 1, Rev. 14, Section III.A. As discussed above in
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`Section III.B, the Decision conflicts with the Federal Circuit’s guidance on what
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`constitutes a printed publication. Second, an expanded panel is also warranted
`
`because the determination of what qualifies as a printed publication “involves an
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`issue of exceptional importance” for which there is a “substantial difference of
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`opinion among judges.” See Std. Op. Proc. 1, Rev. 14, Section III.A. Among
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`other things, the Decision departs from other panels that have recognized that
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`“evidence generated by the Wayback Machine generally has been accepted as prior
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`art in patent cases.” Elec. Arts, IPR2015-01595, Paper No. 38 at 11-12; see also
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`Mipox Corp., IPR2017-00937, Paper No. 9 at 12; Creston Elecs., IPR2015-01379,
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`Paper No. 16 at 14. Finally, it would be helpful for an expanded panel to provide
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`guidance as to what constitutes a printed publication based on the Federal Circuit’s
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`and the Board’s precedent, including what constitutes sufficient evidence for
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`14
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`IPR2018-00476
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`institution so that the issue can be further developed during trial.5
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`V. CONCLUSION
`The Board’s decision misapprehended Google’s evidence and controlling
`
`law on what constitutes a printed publication. Google, therefore, respectively
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`requests rehearing and institution of trial.
`
`5 Indeed, if trial were instituted, Google could show Patent Owner’s misleading
`
`arguments on Cheyer have no basis. For instance, in an IDS for a related
`
`application, Patent Owner cited a third-party patent filed before the ’718 patent’s
`
`earliest effective filing date that cites to Cheyer and points to the exact URL
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`archived in Exhibit 1031. Ex. 1006 at 286 (citing U.S. Patent No. 6,144,989); see
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`also U.S. Patent No. 6,144,989 at 2:17-19. This citation by a third-party refutes
`
`any notion that SRI’s website was unknown to a POSITA or that Cheyer could not
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`be found there. Patent Owner also submitted an identical copy of Cheyer,
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`available in the Patent Office’s file history, and cited numerous SRI webpages,
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`dispelling any purported uncertainty advanced by Patent Owner about the contents
`
`of Cheyer and the accessibility of articles on SRI’s website. See, e.g., Ex. 1006 at
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`96, 141, 284, 286. Google would also show that Exhibit 1030 was two mouse
`
`clicks away from the URL Moran cited (an “Applications” link notably omitted
`
`from Patent Owner’s evidence, then a link titled, like Cheyer, “Multimodal Maps”)
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`and that Exhibit 1031 was two mouse clicks from there.
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`
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`15
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`IPR2018-00476
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`
`
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`Respectfully submitted,
`
`By: /Naveen Modi/
` Naveen Modi (Reg. No. 46,224)
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`
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`Dated: July 24, 2018
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`16
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`IPR2018-00476
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 24, 2018, I caused a true and correct copy of the
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`foregoing Petitioner’s Request for Rehearing and Suggestion for Rehearing by an
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`Expanded Panel to be served on the Patent Owner at the following counsel of
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`Steven W. Hartsell
`Alexander E. Gasser
`Sarah E. Spires
`Skiermont Derby LLP
`IPA_SDTeam@skiermontderby.com
`
`
`
`
`
`By: /Naveen Modi/
` Naveen Modi (Reg. No. 46,224)
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`record:
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