Trials@uspto.gov Paper 13
`571-272-7822 Entered: January 7, 2026
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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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`CELLULAR SOUTH, INC.,
`Patent Owner.
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`IPR2025-00877
`Patent 11,126,853 B2
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`Before KARL D. EASTHOM, WILLIAM V. SAINDON, and
`MIRIAM L. QUINN, Administrative Patent Judges.
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`SAINDON, Administrative Patent Judge.
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`DECISION
`Denying Petitioner’s Request for Rehearing of Decision on Institution
`37CF.R §42.71(d)
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`IPR2025-00877
`Patent 11,126,853 B2
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`I. BACKGROUND
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`Petitioner requests rehearing of our Decision on Institution (Paper 11,
`“Decision” or “Dec.”) in which we denied inter partes review. Paper 12
`(“Req. Reh’g”). We review rehearing requests on a decision on institution
`for an abuse of discretion. 37 C.F.R. § 42.71(c). As our reviewing court set
`out in Bilstad v. Wakalopulos, 386 F.3d 1116, 1121 (Fed. Circ. 2004):
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`An abuse of discretion is found if the decision: (1) is clearly
`unreasonable, arbitrary, or fanciful; (2) is based on an erroneous
`conclusion of law; (3) rests on clearly erroneous fact finding; or
`(4) involves a record that contains no evidence on which the
`Board could rationally base its decision.
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`In addition, “[t]he burden of showing a decision should be modified
`lies with the party challenging the decision. The request must specifically
`identify all matters the party believes the Board misapprehended or
`overlooked, and the place where each matter was previously addressed.” 37
`C.F.R. § 42.71(d).
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`For the reasons that follow, we deny Petitioner’s Request for
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`Rehearing.
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`II. ANALYSIS
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`A.
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`Petitioner asserts that “[t]here was a clear controversy over the
`meaning of the term ‘fractal’” and that “Petitioner offered two alternative
`interpretations of ‘fractal.”” Reh’g Req. 2. According to Petitioner,
`therefore, “there was a claim construction dispute regarding the plain and
`ordinary meaning of ‘fractal’ that the Board was required to resolve with an
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`actual construction.” Id. at 4; see also id. at 2-5 (entire argument) (citing,
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`e.g., 02 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351,
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`2
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`[PR2025-00877
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`Patent 11,126,853 B2
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`1361 (Fed. Cir. 2008) (“[ When] the ‘ordinary’ meaning of a term does not
`resolve the parties’ dispute, [] claim construction requires the court to
`determine what claim scope is appropriate in the context of the patents-in-
`suit.”)).
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`Petitioner attempts to characterize its Petition as having raised a
`controversy over the meaning of “fractal.” However, Petitioner did not
`present such an issue, and in fact stated that “Petitioner does not believe
`express claim construction is necessary at this time” and that “express
`constructions are not required.” Pet. 9. Similarly, Patent Owner did not
`present a claim construction issue. Prelim. Resp. 5-6. Thus, no express
`claim construction issue was presented.
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`Nevertheless, claim construction issues may present themselves by the
`way the art is applied or by the form of the arguments. Our Decision
`addressed this possibility by acknowledging Petitioner’s arguments
`regarding Patent Owner’s alleged district court position on “fractals” (Dec.
`7-9) as well as Petitioner’s arguments regarding Kouzani’s alleged teaching
`of “fractals” (id. at 9—-12). As we explained in the Decision, Petitioner’s
`position regarding Patent Owner’s alleged construction failed because the
`argument was not fleshed out and “amount[ed] to little more than a mere
`allegation.” Dec. 9. As to Petitioner’s position regarding Kouzani, we
`explained that that argument failed because Kouzani’s fractals were not
`“based on landmarks” as required by the claim. /d. at 11. Instead, we found
`that Kouzani’s pixel-based fractals were based on abstract pixel patterns. Id.
`(finding that the “block-based system of Kouzani is based on abstract,
`repeated patterns of pixels, without regard to what the pixels represent”).
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`Neither of Petitioner’s arguments required a claim construction to address
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`[PR2025-00877
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`Patent 11,126,853 B2
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`them. Accordingly, an explicit construction of “fractal” was unnecessary to
`the outcome of the proceeding, and our decision not to explicitly construe
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`the term “fractal” was reasonable.
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`B.
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`Petitioner next argues that our analysis of the phrase “based on” was
`too narrow. Req. Reh’g 5-7. First, Petitioner asserts that we “require[d] a
`search for or express identification of landmarks.” Id. at 1. To the extent
`Petitioner reads our Decision that way, we clarify that we did not construe
`the claim as requiring a search for landmarks. Instead, we contrasted
`Kouzani’s pixel-based fractals, i.e., fractals that are derived from abstract
`pixel patterns, with fractals that are based on landmarks, 1.e., fractals that are
`derived from landmarks. Dec. 11. We were not persuaded that Petitioner
`had explained how Kouzani’s pixel patterns take into consideration or
`depend on landmarks. We then stated that Kouzani’s fractals were different
`from “looking for particular landmarks in the image.” Id. The thing
`“looking” in this statement was the claimed “object recognizer configured to
`compare the image of the object to a fractal.” Thus, we reviewed the prior
`art to see whether it rendered obvious the claimed object recognizer looking
`for a fractal, wherein the fractal is based on landmarks. We are not
`persuaded we abused our discretion in our analysis of Kouzani’s fractals.
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`Second, Petitioner offers a new argument, that “based on” could be
`construed such that “if landmarks are present in the image, then they can be
`taken into consideration without having to expressly identify them.” Id. at 5.
`If read in this way, then according to Petitioner the claim would then be
`broad enough such that “any model, whether fractal or not, that attempts to
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`accurately represent a particular face would be based on . . . those features.”
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`Id. at 6. However, this newly offered interpretation, which would only
`require the subject of the image to ~ave landmarks, appears impermissibly
`broad and would render the claim limitations effectively meaningless. We
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`are not persuaded by Petitioner’s belated argument.
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`C.
`Petitioner lastly argues that our determination that Zhao and Kouzani
`do not render obvious a fractal was erroneous. Req. Reh’g 7-10. However,
`this argument is premised on the adoption of Petitioner’s new, broad claim
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`construction that we reject in the previous section.
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`D.
`Upon review of Petitioner’s request for reconsideration, we maintain
`our position that Petitioner has not established a reasonable likelihood of
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`SUCCCSS.
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`IPR2025-00877
`Patent 11,126,853 B2
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`III. ORDER
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`In consideration of the foregoing, it is hereby ORDERED that the
`Petitioner Request for Reconsideration of our Decision on Institution is
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`denied.
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`IPR2025-00877
`Patent 11,126,853 B2
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`FOR PETITIONER:
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`Heidi Keefe
`Andrew Mace
`COOLEY LLP
`hkeefe@cooley.com
`amace(@cooley.com
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`FOR PATENT OWNER:
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`Amy Simpson
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`Robert Jain
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`HOLLAND & KNIGHT LLP
`amy.simpson@hklaw.com
`robert.jain@hklaw.com
`clientteam-cellular@hklaw.com
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