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` Date: July 23, 2021
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ZOHO CORPORATION,
`Petitioner,
`v.
`RFID TECHNOLOGY INNOVATIONS, LLC,
`Patent Owner.
`
`IPR2021-00448
`Patent 9,582,689 B2
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`Before TREVOR M. JEFFERSON, KEVIN C. TROCK, and
`STEVEN M. AMUNDSON, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
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`Patent 9,582,689 B2
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`INTRODUCTION
`I.
`Zoho Corporation (“Zoho” or “Petitioner”) filed a Petition for inter
`partes review of claims 1–7 and 9–17 (the “challenged claims”) of U.S.
`Patent No. 9,582,689 B2 (Ex. 1001, “the ’689 patent”). Paper 2 (“Pet.”).
`RFID Technology Innovations, LLC (“RFID Tech” or “Patent Owner”) did
`not file a Preliminary Response.
`Applying the standard set forth in 35 U.S.C. § 314(a), which requires
`demonstration of a reasonable likelihood that Petitioner would prevail with
`respect to at least one challenged claim, we grant the Petition and institute an
`inter partes review. The Board has not made a final determination regarding
`the patentability of any claim.
`
`II. BACKGROUND
`A. Related Proceedings
`Petitioner identifies RFID Technology Innovations, LLC v. Zoho
`Corporation, No. 6:20-cv-00963 (W.D. Tex.); and RFID Technology
`Innovations, LLC v. Touma, Incorporated, No. 6:20-cv-00961 (W.D. Tex.);
`as cases involving the ’689 patent. Pet. 3. We note that case no. 6:20-cv-
`00961 appears to have been voluntarily dismissed by the parties. See Notice
`of Voluntary Dismissal with Prejudice, RFID Technology Innovations, LLC
`v. Touma, Incorporated, No. 6:20-cv-00961 (W.D. Tex. Feb. 4, 2021).
`B. The ʼ689 Patent
`The ’689 patent, titled “System and Method for Presenting
`Information About an Object on a Portable Electronic Device,” relates to
`methods and systems “for enabling a portable electronic device to retrieve
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`information about an object when the object’s symbology, e.g., a barcode, is
`detected.” Ex. 1001, code 57. As the abstract states:
`a method is providing in which symbology associated with an
`object is detected and decoded to obtain a decode string. The
`decode string is sent to one or more visual detection applications
`for processing, wherein the one or more visual detection
`applications reside on the portable electronic device, and
`receiving a first amount of information about the object from the
`one or more visual detection applications. The method also
`includes sending the decode string to a remote server for
`processing and receiving a second amount of information about
`the object from the remote server. The first amount of
`information is combined with the second amount of information
`to obtain cumulative information which is displayed on the
`portable electronic device.
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`Id.
`
`The ’689 patent discloses that “[t]he object may be an article of
`commerce, product, service, or any item associated with various types of
`symbology.” Id. at 3:8–10. Furthermore, the ’689 patent states that “[u]sing
`any applicable visual detection device (e.g., a camera, scanner, or other
`device) on the portable electronic device, the user may select an object by
`scanning or capturing an image of symbology (e.g., barcodes) associated
`with the object.” Id. at 3:2–8. Once scanned, the symbology “is decoded to
`obtain a decode string using one or more detection applications residing on
`the electronic device.” Id. at 2:23–25. “The decode string is [also] sent to a
`remote server” where it is used to retrieve information about the object from
`the remote server. Id. at 2:25–26. The information from the server is
`combined with the information residing on the electronic device and
`displayed on the electronic device. Id. at 2:26–29, code 57.
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`C. Illustrative Claim
`Petitioner challenges claims 1–7 and 9–17 of the ’689 patent. Claims
`1, 15, and 16 are independent claims. Claim 1 below is representative.
`1. A method comprising:
`scanning an object using an electronic device wherein the
`object contains a Radio Frequency Identification Tag (RFID);
`detecting symbology associated with the object using the
`electronic device;
`decoding the symbology to obtain a decode string using
`one or more detection applications residing on the electronic
`device;
`sending the decode string to a remote server for
`processing;
`receiving information about the object from the remote
`server wherein the information is based on the decode string;
`displaying the information on a display device associated
`with the electronic device.
`Ex. 1001, 14:2–17.
`D. Asserted Ground of Unpatentability
`The information presented in the Petition sets forth the following
`proposed grounds of unpatentability for the challenged claims of the ’689
`patent (Pet. 3–4):
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`Claims Challenged
`1–3, 5–7, 9–11,
`13, 15–17
`1, 15
`2, 3
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`4
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`12, 14
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`Frantz (Ex. 1006)2
`Rothschild (Ex. 1005)3
`Frantz (Ex. 1006),
`Patel (Ex. 1009)4
`Frantz (Ex. 1006),
`Kotlarsky (Ex. 1010)5
`Frantz (Ex. 1006),
`Kim (Ex. 1011)6
`Petitioner relies on the Declaration of Dr. Richard Billo to support its
`unpatentability contentions (Ex. 1004, “Billo Dec.”).
`
`35 U.S.C. §1
`
`References/Basis
`
`102
`102
`103
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`103
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`103
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`III. DISCRETIONARY DENIAL UNDER 35 U.S.C. § 314(a)
`Institution of an inter partes review is discretionary, not mandatory.
`See Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016) (“[T]he
`agency’s decision to deny a petition is a matter committed to the Patent
`Office’s discretion.”); Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356,
`
`
`1 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(September 16, 2011) (“AIA”), included revisions to 35 U.S.C. §§ 102, 103
`that became effective on March 16, 2013. Because the ’689 patent issued
`from an application filed before March 16, 2013, we apply the pre-AIA
`version of the statutory basis for unpatentability.
`2 U.S. Patent No. 7,309,014, issued Dec. 18, 2007 (Ex. 1006, “Frantz”).
`3 U.S. Patent App. Publication No. 2008/0004978 A1, published Jan. 3, 2008
`(Ex. 1005, “Rothschild”).
`4 U.S. Patent No. 7,195,164, issued Mar. 27, 2007 (Ex. 1009, “Patel”).
`5 U.S. Patent No. 7,708,205, issued May 4, 2010 (Ex. 1010 “Kotlarsky”).
`6 U.S. Patent App. Publication No. 2006/0173859 A1, published Aug. 3,
`2006 (Ex. 1011, “Kim”).
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`1367 (Fed. Cir. 2016) (“[T]he PTO is permitted, but never compelled, to
`institute an IPR proceeding.”).
`Patent Owner has not preliminarily challenged the Petition nor argued
`that we should exercise discretion under 35 U.S.C. § 314(a) to deny
`institution in this case because of the proceedings in the Western District of
`Texas. Nevertheless, Petitioner assert that we should reject any arguments
`for discretionary denial under 35 U.S.C. § 314(a). Pet. 15–18. As Patent
`Owner has not raised discretionary denial under 35 U.S.C. § 314(a), we need
`not address this issue.
`
`IV. ANALYSIS
`A. Legal Standard
`“In an [inter partes review], 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) (citing 35 U.S.C. § 312(a)(3) (requiring inter partes review
`petitions to identify “with particularity . . . the evidence that supports the
`grounds for the challenge to each claim”)); see also 37 C.F.R. § 42.104(b)
`(requiring a petition for inter partes review to identify how the challenged
`claim is to be construed and where each element of the claim is found in the
`prior art patents or printed publications relied upon).
`A claim is anticipated under 35 U.S.C. § 102 “only if each and every
`element as set forth in the claim is found, either expressly or inherently
`described, in a single prior art reference.” Verdegaal Bros., Inc. v. Union
`Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987). In an anticipation
`analysis, prior art references must be “considered together with the
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`knowledge of one of ordinary skill in the pertinent art.” In re Paulsen,
`30 F.3d 1475, 1480 (Fed. Cir. 1994). Thus, “extrinsic evidence may be . . .
`used to explain, but not expand, the meaning of a reference.” In re Baxter
`Travenol Labs, 952 F.2d 388, 390 (Fed. Cir. 1991).
`A patent claim is unpatentable under 35 U.S.C. § 103 if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, “would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved based on underlying factual
`determinations including: (1) the scope and content of the prior art; (2) any
`differences between the claimed subject matter and the prior art; (3) the level
`of ordinary skill in the art; and (4) when presented, objective evidence of
`nonobviousness, i.e., secondary considerations. Graham v. John Deere Co.,
`383 U.S. 1, 17–18 (1966).
`Additionally, the obviousness inquiry typically requires an analysis of
`“whether there was an apparent reason to combine the known elements in
`the fashion claimed by the patent at issue.” KSR, 550 U.S. at 418 (citing In
`re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring “articulated
`reasoning with some rational underpinning to support the legal conclusion of
`obviousness”)). Petitioner cannot satisfy its burden of proving obviousness
`by employing “mere conclusory statements,” but “must instead articulate
`specific reasoning, based on evidence of record, to support the legal
`conclusion of obviousness.” In re Magnum Oil Tools Int’l, Ltd., 829 F.3d
`1364, 1380 (Fed. Cir. 2016).
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`B. Level of Ordinary Skill in the Art
`Petitioner asserts that a
`person of ordinary skill in the art (“POSITA”) at the relevant
`time, in late 2010, would have a Bachelor of Science in Electrical
`Enginering, Computer Science,
`Industrial Engineering,
`Engineering Technology or similar education, an understanding
`of the various types of automatic identification and data capture
`technologies, their attributes and functionality, and at least 2
`years of experience in their field of study, or equivalent practical
`experience in the relevant field.
`Pet. 7 (citing Ex. 1004 ¶ 44). In determining whether an invention would
`have been obvious at the time it was made, we consider the level of ordinary
`skill in the pertinent art at the time of the invention. Graham, 383 U.S. at
`17. “The importance of resolving the level of ordinary skill in the art lies in
`the necessity of maintaining objectivity in the obviousness inquiry.” Ryko
`Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718 (Fed. Cir. 1991). For purposes
`of this Decision, we agree with and adopt Petitioner’s statement of the level
`of ordinary skill in the art.
`C. Claim Construction
`For petitions filed after November 13, 2018, as here, the Board uses
`“the same claim construction standard that would be used to construe the
`claim in a civil action under 35 U.S.C. 282(b), including construing the
`claim in accordance with the ordinary and customary meaning of such claim
`as understood by one of ordinary skill in the art and the prosecution history
`pertaining to the patent.” 37 C.F.R. § 42.100(b); see Phillips v. AWH Corp.,
`415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc). “[T]he specification
`may reveal a special definition given to a claim term by the patentee.”
`Phillips, 415 F.3d at 1316. If an inventor acts as his or her own
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`lexicographer, the definition must be set forth in the specification with
`reasonable clarity, deliberateness, and precision. Renishaw PLC v. Marposs
`Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998). Only claim
`terms “in controversy” need be construed “and only to the extent necessary
`to resolve the controversy.” Nidec Motor Corp. v. Zhongshan Broad Ocean
`Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citation omitted).
`1. “symbology”
`Petitioner argues that “symbology” should be construed as “a
`machine-readable symbol such as a barcode for encoding information.”
`Pet. 8–9 (citing Ex. 1004 ¶¶ 52–54). We agree with Petitioner as the ’689
`patent explains that “the symbology may be in any form currently practiced
`in the art including barcodes (e.g., UPC, EAN, PDF417, etc.),
`photosymbols, standard or specialized text, etc., or any future type of
`symbology.” Ex. 1001, 8:60–63. Accordingly, we construe symbology as
`“a machine-readable symbol such as a barcode for encoding information.”
`2. “decode string”
`Petitioner argues that a person of ordinary skill in the art would
`understand that decode string represents the decoded symbology. Pet. 9;
`Ex. 1001, 3:32–35; Ex. 1004 ¶¶ 55–56. Having reviewed the preliminary
`record, we determine that “decode string” does not require express
`construction.
`3. “analyzing the decode string to determine a category of the selecting one
`or more appropriate applications to process the decode string”
`With respect to dependent claim 9, Petitioner argues that the claim
`appears to be missing words between “a category of the” and “selecting one
`or more” as recited. Pet. 9–10; Ex. 1001, 14:57–61. Petitioner argues that
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`an ordinarily skilled artisan would understand the claim to address
`determining a category of the “object” and selecting one or more appropriate
`applications for decoding. Pet. 10; Ex. 1004 ¶ 58. We agree that in context
`of the claims, a person of skill in the art would understand claim 9 to refer to
`“analyzing the decode string to determine a category of the [object and]
`selecting one or more appropriate applications to process the decode string.”
`4. “alerting the user when the object containing symbology has been
`querying the user if decoding of the symbology is desired; and receiving
`a reply from the user”
`In dependent claim 6, Petitioner argues that apart from the drafting
`errors in the claim, it has “interpreted this claim as if [the] first clause recited
`‘alerting the user when the object containing symbology has been [detected,
`and] querying the user if decoding of the symbology is desired.’” Pet. 11;
`Ex. 1001, 11:55–62; Ex. 1004 ¶ 61. For purposes of this Decision, we agree
`with Petitioner that a person of ordinary skill in the art would understand
`claim 6 as reciting “alerting the user when the object containing symbology
`has been [detected, and] querying the user if decoding of the symbology is
`desired.”
`5. “display the information on a display device associated with the portable
`electronic device”
`Petitioner asserts “display the information on a display device
`associated with the portable electronic device” recited in independent claim
`16 means to “display information about the digital image on a display device
`associated with the portable electronic device.” Pet. 11–12; Ex. 1004 ¶ 62.
`Having reviewed the preliminary record, we determine that this claim term
`does not require express construction.
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`D. Ground 1: Anticipation Based on Frantz (Ex. 1006)
`Petitioner argues that claims 1–3, 5–7, 9–11, 13, 15–17 are anticipated
`by Frantz (Ex. 1006). Pet. 18–43; Ex. 1004 ¶¶ 75–125. At this stage, Patent
`Owner has not filed a preliminary response to Petitioner’s contentions. We
`provide an overview of the prior art references and address Petitioner’s
`contentions with respect to the challenged claims below.
`1. Frantz (Ex. 1006)
`Frantz, entitled “Mobile Device Gateway Providing Access to Instant
`Information,” describes a system where “a user first scans any common
`barcode using a mobile device” and where the information is “sent to a
`server,” which returns information to the user that is displayed on a page for
`a user’s selection. Ex. 1006, codes 54 and 57. Figure 2 of Frantz
`(reproduced below) shows a flow chart of the process a mobile gateway uses
`to provide content to users from a barcode. Ex. 1006, 3:65–67.
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`Figure 2 shows the operation of the mobile gateway, where a user scans a
`barcode using a mobile device in step 201. Id. at 4:56–61. Frantz
`incorporates a patent application, U.S. Patent Application No. 10/757,095
`titled “System and Method for Decoding and Analyzing Barcodes Using a
`Mobile Device” (Ex. 1007, the “’095 application”). Ex. 1006, 2:54–57.
`Frantz refers to the ’095 application as disclosing a system for decoding
`barcodes on mobile devices using a digital image. Id. at 4:63–66. Figure 2
`of Frantz further shows decoding the barcode, step 203, sending information
`to the server and determining the preferred vendors and content providers in
`steps 207 and 209 (id. at 5:13–27). In step 219, the gathered information is
`displayed on the mobile device.
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`2. Claim 1
`Petitioner asserts that independent claim 1 is anticipated by Frantz.
`Pet. 21–26; Ex. 1004 ¶¶ 76–79. Petitioner provides detailed argument and
`evidence that Frantz and the patent application incorporated by reference
`into Frantz, Ex. 1007, disclose the limitations of claim 1. Specifically,
`Petitioner argues that Frantz discloses reading a barcode that could be a
`Radio Frequency Identification Tag (RFID) (Ex. 1006, 4:10–22, 4:34–36;
`Ex. 1004 ¶ 76); and detecting symbology using the mobile device (Ex. 1006,
`2:49–54; Ex. 1004 ¶¶ 41, 77; Ex. 1007, Fig. 2A (step 207)). Pet. 21–23.
`Further, Petitioner provides evidence and argument that Frantz discloses
`decoding the symbology (barcode) using one or more applications (Ex. 1007
`¶¶ 27, 60; Ex. 1006, 4:59–66; Ex. 1004 ¶¶ 78–79); and processing the
`decoded symbols on a remote server (Ex. 1006, Fig. 2 (step 203); Ex. 1006,
`3:4–16, 5:13–15; Ex. 1007 ¶¶ 60, 68). Pet. 23–25. Finally, Petitioner
`contends that Frantz discloses receiving information from the remote server
`based on the decoded symbology and displaying it on the mobile device
`display (Ex. 1006, Fig. 2 (steps 211, 213, 217, 221), 3:8–12, 5:29–58, 5:53–
`61, 5:59–6:2). Pet. 25–26.
`3. Claim 1 Conclusion
`At this stage of the proceeding, Patent Owner does not address
`Petitioner’s contentions. Having reviewed Petitioner’s argument and
`evidence, Petitioner provides sufficient evidence that Frantz discloses the
`limitations of claim 1.
`4. Claims 2, 3, 5–7, 9–11, 13, and 15–17
`Petitioner asserts that Frantz discloses claims 2, 3, 5–7, 9–11, 13, and
`15–17 (Pet. 26–43). Petitioner provides persuasive argument and evidence
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`that Frantz and Ex. 1007 incorporated by reference disclose the limitations
`of claims 2, 3, 5–7, 9–11, 13, and 15–17. Pet. 26–43; Ex. 1004, ¶¶ 87–125.
`Based on the record before us, we find that Petitioner provides sufficient
`evidence that Frantz discloses the limitations of claims 2, 3, 5–7, 9–11, 13,
`and 15–17.
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`5. Conclusion
`In view of the foregoing, we determine that Petitioner has
`demonstrated a reasonable likelihood that it would prevail in showing that
`claims 1– 3, 5–7, 9–11, 13, and 15–17 are anticipated by Frantz.
`E. Ground 2: Anticipation Based on Rothschild (Ex. 1005)
`Petitioner contends that Rothschild (Ex. 1005) anticipates claims 1
`and 15. Pet. 43–51; Ex. 1004 ¶¶ 130–147. Patent Owner does not address
`Petitioner’s contentions.
`1. Rothschild (Ex. 1005)
`Rothschild is a patent application that has the same named inventor as
`the ’689 patent and discloses similar subject matter. Ex. 1004 ¶ 127.
`Rothschild is directed to a “system and method . . . for identifying an article
`of commerce, e.g., digital media content, and downloading all or part of
`content related to the article of commerce to mobile devices such as portable
`digital media players and/or mobile phone devices” similar to the ’686
`patent disclosure. Ex. 1005, code 57; see also Ex. 1001, code 57.
`Rothschild discloses use of a mobile phone to capture an image of
`symbology such as a barcode on the article of commerce, decode that
`symbology, send that decoded information to a server where it is processed
`to retrieve information related to the article of commerce that is then sent
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`back for display on the mobile phone. Ex. 1005 ¶¶ 15, 16, 17, 18, 19, 20, 27,
`28, 29, 35, 36–39, 42, 45, 47, 60, Figs. 3 and 4.
`2. Claims 1 and 15
`Petitioner provides citations to Rothschild and the Billo Declaration to
`support its contention that Rothschild discloses the limitations of
`independent claims 1 and 15. Pet. 43–51; Ex. 1004 ¶¶ 130–147. Patent
`Owner does not address Petitioner’s contentions. Having reviewed
`Petitioner’s supporting evidence and argument, we find on the present record
`that Petitioner provides sufficient evidence that Rothschild discloses the
`limitations of claims 1 and 15.
`3. Conclusion
`In view of the foregoing, we determine that Petitioner has
`demonstrated a reasonable likelihood that they would prevail in showing that
`claims 1 and 15 are anticipated by Rothschild.
`F. Grounds 3, 4, and 5: Obviousness based on Frantz (Ex. 1006)
`Petitioner contends that (1) claims 2 and 3 would have been rendered
`obvious over Frantz and Patel (Ex. 1009) (Pet. 56–59; Ex. 1004 ¶¶ 166–
`168); (2) claim 4 would have been rendered obvious over Frantz and
`Kotlarsky (Ex. 1010) (Pet. 52–55; Ex. 1004 ¶¶ 150–154); and (3) claims 12
`and 14 would have been rendered obvious over Frantz and Kim (Ex. 1011)
`(Pet. 59–63; Ex. 1004 ¶¶ 169–173). Patent Owner does not address
`Petitioner’s contentions.
`Having reviewed the record before us, we find that Petitioner provides
`persuasive reasoning and rationales to combine Frantz with Patel (Pet. 53,
`Ex. 1004 ¶ 150); Frantz with Kotlarsky (Pet. 57; Ex. 1004 ¶ 157); and Frantz
`with Kim (Pet. 60–61; Ex. 1004 ¶ 168). In addition, Petitioner provides
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`sufficient evidence that the proposed combinations teach the limitations of
`the challenged claims in each ground. Pet. 56–63.
`Based on the record before us, Petitioner provides sufficient argument
`and evidence that a person of ordinary skill in the art would have understood
`that Frantz and Patel teach the limitations of claims 2 and 3; Frantz and
`Kotlarsky teach the limitations of claim 4; and that Frantz and Kim teach the
`limitations of claims 12 and 14.
`Based on the record before us, Petitioner has demonstrated a
`reasonable likelihood that it would prevail in showing that the subject matter
`of (1) claims 2 and 3 would have been obvious over Frantz and Patel; (2)
`claim 4 would have been obvious over Frantz and Kotlarsky; and (3) claims
`12 and 14 would have been obvious over Frantz and Kim.
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`V. CONCLUSION
`For the above reasons, we determine that Petitioner has established a
`reasonable likelihood that they would prevail in showing that claims 1–7 and
`9–17 of the ’689 patent are unpatentable on the grounds asserted in the
`Petition. We have not made a final determination with respect to the
`patentability of any challenged claims.
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`VI. ORDER
`For the reasons given, it is
`ORDERED that, pursuant to 35 U.S.C. § 314(a), inter partes review is
`hereby instituted as to claims 1–7 and 9–17 of the ’689 patent on all grounds
`set forth in the Petition; and
`FURTHER ORDERED that, pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial,
`commencing on the entry date of this Decision.
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`For PETITIONER:
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`Hector Ribera
`MARTON RIBERA SCHUMANN & CHANG LLP
`hector@martonribera.com
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`
`For PATENT OWNER:
`
`Eugenio J. Torres
`221 Plaza Building
`Ponce De Leon, Suite 403
`San Juan, PR 00917
`Patent@ferraiuoli.com
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