Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper No. 13
`Entered: August 12, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`UNIFIED PATENTS INC.,
`Petitioner,
`
`v.
`
`VINDOLOR, LLC,
`Patent Owner.
`____________
`
`Case IPR2019-00478
`Patent 6,213,391 B1
`____________
`
`
`
`Before KALYAN K. DESHPANDE, WILLIAM V. SAINDON,
`and SCOTT E. BAIN, Administrative Patent Judges.
`
`SAINDON, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Petitioner’s Request on Rehearing of Decision Denying Institution
`37 C.F.R. § 42.71
`
`
`
`
`
`
`Tel: 571-272-7822
`
`Paper No. 13
`Entered: August 12, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`UNIFIED PATENTS INC.,
`Petitioner,
`
`v.
`
`VINDOLOR, LLC,
`Patent Owner.
`____________
`
`Case IPR2019-00478
`Patent 6,213,391 B1
`____________
`
`
`
`Before KALYAN K. DESHPANDE, WILLIAM V. SAINDON,
`and SCOTT E. BAIN, Administrative Patent Judges.
`
`SAINDON, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Petitioner’s Request on Rehearing of Decision Denying Institution
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`IPR2019-00478
`Patent 6,213,391 B1
`
`INTRODUCTION
`I.
`Unified Patents, Inc. (“Petitioner”) filed a petition requesting inter
`partes review of claims 1 and 2 of U.S. Patent No. 6,213,391 B1 (Ex. 1001,
`“the ’391 patent”). Paper 1 (“Pet.”). We issued a Decision Denying
`Institution (Paper 9, “Dec. on Inst.”), based upon a finding that Petitioner
`had not shown that the relied upon reference (Gullman1) taught a particular
`“access code” limitation. See, e.g., Dec. on Inst. 6 (“Gullman’s security
`token is not [the claimed] access code because the security token is used to
`provide transmission security, not to provide access”). Petitioner requests
`rehearing (Paper 10, “Request” or “Req. Reh’g”), arguing that we
`overlooked or misapprehended its positions regarding the “access code”
`limitation. Req. Reh’g 1.
`When rehearing a decision on petition, the Board will review the
`decision for an abuse of discretion. 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.”
`Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004). The party
`requesting rehearing bears the burden of showing an abuse of discretion, and
`“[t]he request must specifically identify all matters the party believes the
`Board misapprehended or overlooked.” 37 C.F.R. § 42.71(d).
`Upon consideration of Petitioner’s arguments, we deny Petitioner’s
`Request.
`
`
`1 U.S. Patent No. 5,280,527, issued Jan. 18, 1994 (Ex. 1004).
`
`2
`
`
`
`IPR2019-00478
`Patent 6,213,391 B1
`
`II. PETITIONER’S REQUEST
`Petitioner argues three points. First, Petitioner argues that “the
`Decision overlooks portions of the Petition that show Gullman’s security
`token is also an ‘access code,’ as claimed, and can be used in a similar
`fashion as disclosed in the ’391 patent.” Req. Reh’g 2–4. Second, Petitioner
`argues that “the Decision appears not to recognize that Gullman advances
`the prior art by disclosing a security token that provides both transmission
`security and user identification/access.” Id. at 4–5. Third, Petitioner argues
`that “the Decision found that Gullman ‘decodes the security token and uses
`what is encoded within to determine whether to grant access’” but that
`“Gullman’s security token . . . provides all of the information necessary to
`authorize access” and that “the claims of the ’391 patent do not require that
`the ‘access code’ be received in a decoded or decrypted form.” Id. at 5–6.
`
`III. ANALYSIS
`Petitioner’s Request disagrees with the outcome of our Decision and
`argues why it believes we should have reached a different outcome, but does
`not point to any specific thing we misapprehended or overlooked. Instead,
`Petitioner’s arguments merely set out how it believes we could have ruled in
`its favor. Underlying Petitioner’s arguments is the notion that we could have
`ruled in its favor had we construed the claims in a particular manner.
`Critically, however, Petitioner never argued such a claim construction in the
`Petition. Specifically, Petitioner did not set out a claim construction that
`would lead us to find that a security token containing an access code is itself
`an access code. Because the claim construction was not made, we could not
`have overlooked or misunderstood arguments made in reliance of it.
`
`3
`
`
`
`IPR2019-00478
`Patent 6,213,391 B1
`Further, Gullman makes clear that its security token is not itself an
`access code—it is a container for various separate and distinct items that are
`separately evaluated to determine access. For example:
`The access device 12 transmits the token to the host 10 which
`decrypts or decodes the token to derive the fixed code and
`correlation factor. If the fixed code identifies a valid user and the
`correlation factor is above the threshold level, then access is
`permitted. If not, then access is denied. With a fixed code to
`identify a particular person or group of persons, the host can be
`programmed to control the type of access or transactions allowed
`for such fixed code.
`Ex. 1004, 6:37–45 (emphasis added); see also id. at 6:17–22 (correlation
`factor determines if verification successful), 4:29–33 (verification and access
`based on correlation factor and fixed code).
`
`We turn back to Petitioner’s three arguments in its Request. As to the
`first argument, that Gullman’s token is an access code, we addressed that
`position in our Decision on Intuition and above. Functionally, a security
`container and an access code are different things. E.g., id. at 1:28–39. The
`function of Gullman’s token is to provide security, not access. As to the
`second argument, that Gullman’s token provides both security and access,
`we again point to the language in Gullman that states that it is not the token
`but the decoded contents therein that provide access. E.g., id. at 6:37–45.
`Petitioner has not provided a claim construction in support of its position
`that containing an access code is the same thing as being an access code.2
`Petitioner’s third argument is not persuasive for the same reason, with the
`
`
`2 We intend no implication as to whether such a construction would be
`persuasive. We merely point out that Petitioner’s arguments are premised
`on a particular broad reading of the claims but no support for such a reading
`is provided.
`
`4
`
`
`
`IPR2019-00478
`Patent 6,213,391 B1
`added note that it is not encrypted versus unencrypted that matters but rather
`the distinction between being an access code and containing an access code.
`In sum, Petitioner’s Request does not persuade us we misapprehended or
`overlooked any matter, or that we abused our discretion.
`
`IV. ORDER
`In view of the foregoing, it is hereby ORDERED that Petitioner’s
`Request on Rehearing is denied and that we do not modify our Decision
`Denying Institution in light of Petitioner’s Request.
`
`
`
`For Petitioner:
`Cono Carrano
`Ashraf Fawzy
`Jung S. Hahm
`Akin Gump Strauss Hauer & Feld LLP
`ccarrano@akingump.com
`afawzy@unifiedpatents.com
`jung@unifiedpatents.com
`
`For Patent Owner:
`Raymond Mort
`Cabrach Connor
`Connor Kudlac Lee PLLC
`raymort@gmail.com
`cab@connorleepllc.com
`
`
`5
`
`
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