Trials@uspto.gov
`571-272-7822
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`Paper: 11
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`Entered: January 16, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LIVE NATION ENTERTAINMENT, INC.,
`Petitioner,
`
`v.
`
`COMPLETE ENTERTAINMENT RESOURCES B.V.,
`Patent Owner.
`____________
`
`Case PGR2017-00038
`Patent 9,466,035
`____________
`
`Before MICHAEL J. FITZPATRICK, BARBARA A. PARVIS, and
`JASON W. MELVIN, Administrative Patent Judges.
`
`FITZPATRICK, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Post-Grant Review
`35 U.S.C. § 325(d)
`
`
`
`
`
`

`

`PGR2017-00038
`Patent 9,466,035
`
`
`INTRODUCTION
`I.
`Live Nation Entertainment, Inc. (“Petitioner”) filed a Petition to
`institute a post-grant review of all claims, viz. claims 1–19, of U.S. Patent
`No. 9,466,035 (“the ’035 patent”). Paper 1 (“Pet.”). Songkick.com B.V.
`filed a Preliminary Response. Paper 6 (“Prelim. Resp.”). Songkick.com
`B.V. subsequently changed its name to Complete Entertainment Resources
`B.V. (“Patent Owner”). Paper 7, 2.
`The Petition is denied under 35 U.S.C. § 325(d).
`
`A. The ’035 Patent
`The ’035 patent, issued October 11, 2016, from U.S. Application
`serial no. 14/595,797 (“the ’797 application”), which was filed January 13,
`2015. Ex. 1001, at [45], [21], and [22]. The ’035 patent does not claim the
`benefit of any earlier-filed application, and is, thus, eligible for post-grant
`review.1
`The ’035 patent is titled “Systems and Methods For Leveraging Social
`Queuing To Facilitate Event Ticket Distribution.” Id. at [54]. The ’035
`patent points out that “ticket resellers utilize automated software for
`purchasing tickets,” and aspires “to provide event ticket systems and
`methods that reduce the unfair advantage in ticket purchases enjoyed by
`automated ticket purchasing software and associated [application
`programming interfaces].” Ex. 1001, 1:16–17, 1:50–53.
`
`
`1 The post-grant review process is available only to patents subject to the
`first-inventor-to-file provisions of the Leahy–Smith America Invents Act,
`Pub. L. No. 112–29, 125 Stat. 284 (2011) (“AIA”). AIA § 6(f)(2)(A). And,
`more specifically, the first-inventor-to-file provisions apply only to patents
`(such as the ’035 patent) issuing from applications that have an effective
`filing date on or after March 16, 2013. Id. at § 3(n)(1).
`
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`PGR2017-00038
`Patent 9,466,035
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`
`The claimed invention relates to “prioritizing potential event ticket
`purchasers” and using “purchaser behavior” to do so. Id. at 1:8–11.
`Generally, the ’035 patent concerns identifying different classes of ticket
`purchasers based on social media account history and other data. For
`example, a performing “entity may choose to award ticket purchasing
`priority to certain entity-loyal participants based on identifiable indications
`of loyalty associated with the social media IDs or other activity identifying
`information or websites of such entity-loyal participants.” Id. at 2:63–3:1.
`The ’035 Patent terms this “social queuing” and further explains that it “may
`also include limiting access, or denying access to certain participants based
`on account history corresponding to social media IDs or other suitable
`indicia.” Id. at 3:5–8. The activity identifying information may be
`“obtained from websites and/or apps such as Songkick™, iTunes™,
`Amazon™, YouTube™, or other such applications that track and/or monitor
`user affinity to select performers.” Id. at 3:10–13.
`The ’035 patent performs this social queuing by performing an
`algorithm that computes an index value for each user/login, with the index
`value being based, at least, in part on account history retrieved from social
`media. Id. at 6:21–22. Such social media history may include a “time-
`stamped indication of affinity for an entity [e.g., a rock band] associated
`with the event [for which the ticket is being sold]” or “tagging of a
`photograph of” the entity. Id. at 6:44–56. The index value may also be
`based on “other historical information such as, for example, historical ticket
`purchases for performances that the user attended.” Id. at 6:32–34.
`“Historical purchase(s) of merchandise, such as t-shirts, mugs, or other
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`PGR2017-00038
`Patent 9,466,035
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`performer associated paraphernalia, may also indicate an affinity for the pre-
`determined entity.” Id. at 7:28–30.
`In addition to discriminating between users/logins based on their
`affinity (or not) for a performing entity, the ’035 patent also discriminates
`between users/logins based on whether they are likely to be human versus
`computer purchasers. See, e.g., id. at 7:35–38 (“The method may further
`include querying the account history to determine whether the account
`history includes one or more parameters that indicate whether the social
`media ID is related to an automated entity or a human entity.”).
`Figure 8 of the ’035 patent is reproduced below.
`
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`
`Figure 8, reproduced above, shows a flow diagram of filtering and
`sorting ticket purchasing opportunities based on the index value. Id. at
`2:55–56. In the embodiment of Figure 8, logins/users are sorted into three
`groups: (1) logins of priority users, (2) logins of non-priority users, and
`(3) logins associated with non-human users (e.g., automated ticket
`purchasing bots belonging to scalpers). Id. at Fig. 8: refs. 808, 810, 811. If
`a user’s login is assigned an index value above a first threshold, it is
`assigned a priority flag, enabling that user to purchase a ticket not available
`to all users until a later time, if at all. Id. at 6:25–30, 13:38–60 (excerpt
`refers to Figure 6 but applies equally to Figure 8 (see id. at 14:32–33)), Fig.
`8: ref. 808. If a user’s login is assigned an index value below the first
`threshold but above a second threshold, it is not given a priority flag, and
`that user may purchase tickets after the window for priority user tickets
`purchases passes. Id. at 13:60–14:9, Fig. 8: ref. 810. If a user’s login is
`assigned a value below the second threshold, it is because that user appears
`to be non-human per the algorithm’s calculation, and the ability of that login
`to purchase tickets is restricted or prohibited altogether. Id. at 14:44–46,
`Fig. 8: ref. 811.
`
`
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`PGR2017-00038
`Patent 9,466,035
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`
`B. The Challenged Claims
`The ’035 patent includes 19 claims, all of which are challenged.
`Claims 1, 8, 15, and 19 are independent. Claims 1 and 19 are illustrative and
`reproduced below.
`An event ticket distribution system comprising:
`1.
`a receiver configured to receive a plurality of logins, each
`of the logins intended for an event ticket purchase; a processor
`configured to retrieve social media account history or other data
`source information associated with each of the plurality of logins,
`wherein each of the social media account history, or other data
`source information, comprises at least one time-stamped
`indication of affinity for a performing entity associated with the
`event, said at least one time-stamped indication of affinity
`comprising a time-stamp prior to the receipt of the login
`associated with the social media account history or other data
`source information;
`wherein the processor is further configured to calculate an
`index value associated with the login, said index value being
`based, at least in part, on the retrieved account history or data
`source information; and
`when the index value associated with a login is above a
`pre-determined
`threshold value,
`the processor
`is further
`configured to assign a priority flag to the login, wherein said
`priority flag enables a ticket event purchase in a first time
`window, when the index value is below the first threshold value
`but above a second threshold value, the processor is further
`configured to assign a non-priority flag, said non-priority flag
`that enables the login to make an event ticket purchase in a
`second time window, and when the index value is associated with
`a value under the second threshold value, the processor restricts
`the ticket purchasing rights associated with the login.
`19. An article of manufacture comprising a non-
`transitory computer usable medium having computer readable
`program code embodied therein, the code when executed by one
`or more processors for configuring a computer to execute a
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`PGR2017-00038
`Patent 9,466,035
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`
`method to prioritize automated ticket purchasers, the method
`comprising:
`using a receiver to receive a plurality of logins, each of the
`logins intended for an event ticket purchase, each of the logins
`corresponding, at least in part, to stored or retrieved data source
`information (“user information”), wherein the user information
`comprises at least one time-stamped indication of affinity for a
`performing entity associated with the event, said at least one
`time-stamped indication of affinity comprising a time-stamp
`prior to the receipt of the login associated with the user
`information;
`using a processor to retrieve account history associated
`with the user information;
`using the processor to calculate an index value associated
`with the user information, said index value being based, at least
`in part, on the retrieved account history; and
`when the index value associated with a login is above a
`pre-determined threshold value, using the processor to assign a
`priority flag to the login, wherein said priority flag enables an
`event ticket purchase, and the processor eliminates ticket
`purchasing rights for a login associated with a value under the
`threshold value.
`Claims 2 through 18, like claim 1 shown above, require a processor
`configured to assign index values into three categories and correspondingly
`treat logins in one of three manners with respect to the ability (or not) to
`purchase tickets. Claim 19 is different. Claim 19 requires a processor
`configured to assign index values into just two categories and
`correspondingly treat logins in one of two manners with respect to the ability
`(or not) to purchase tickets.
`
`
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`PGR2017-00038
`Patent 9,466,035
`
`
`C. Asserted Grounds of Unpatentability
`Petitioner asserts the following grounds of unpatentability:
`References
`Basis
`Claims
`1–19
`Not applicable
`Judicial
`exception
`to § 101
`§ 103
`
`Scarborough (Ex. 1004)2 and McEwen
`(Ex. 1005)3
`Scarborough, McEwen, and Shivakumar
`(Ex. 1006)4
`Pet. 4–5.
`
`§ 103
`
`1, 4–9, 12–
`16, and 19
`2, 3, 10, 11,
`17, and 18
`
`D. Related Matters
`Petitioner does not identify any related matters, stating—
`incompletely—“Petitioner is aware of no other matters involving the ’035
`patent.” Pet. 2 (emphasis added). The parties, however, are obligated to
`identify more than just matters involving the subject patent. More
`specifically, they must “[i]dentify any other judicial or administrative matter
`that would affect, or be affected by, a decision in the proceeding.” 37 C.F.R.
`§ 42.8(b).
`Patent Owner identifies U.S. Patent No. 9,639,811 (“the ’811 patent”)
`(Ex. 2001) as a related matter. Paper 4, 2. The ’811 patent (Ex. 2001)
`issued from U.S. Application serial no. 15/099,750 (“the ’750 application”).
`
`
`2 U.S. Patent App. Pub. No. 2015/0066546 A1, published March 5, 2015 in
`the name of Scarborough et al.
`3 U.S. Patent App. Pub. No. 2016/0078370 A1, published March 17, 2016 in
`the name of McEwen et al.
`4 U.S. Patent App. Pub. No. 2015/0134371 A1, published May 14, 2015 in
`the name of Shivakumar et al.
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`Patent 9,466,035
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`The ’750 application is a continuation of the ’797 application that issued as
`the ’035 patent being challenged here. Ex. 2001, at [63]. During
`prosecution of the related ’811 patent, an unknown third party filed a Pre-
`issuance Submission (“third party submission”) pursuant to 35 U.S.C.
`§ 122(e) and 37 C.F.R. § 1.290. Ex. 2002, 57–97. The third party
`submission presented arguments and art to the Examiner that are extremely
`similar to those presented in the instant Petition. Compare id. at 58–90, with
`Pet. 31–75; compare Ex. 2002, 94–96, with Pet. 21–31. Despite those
`arguments and art, the Examiner allowed the claims of the ’811 patent to
`issue. Id. at 8–23. Further, the claims of the ’811 patent are very similar to
`the claims of the ’035 patent. See, e.g., Prelim. Resp. 29–30 (side-by-side
`comparison of claim 1 of the ’035 patent and claim 1 of the ’811 patent).
`Petitioner was aware of the third party submission in the ’750
`application, as it copied portions of it into the Petition. See Prelim.
`Resp. 37–38 (comparing Exhibit 2002, 95–96, with Pet. 36). The Petition
`even mistakenly refers to the ’035 patent as an “application,” an error
`presumably derived from the act of copying material from the third party
`submission. See Pet. 27 (“Thus, like the claims in FairWarning, the claims
`in the present application are directed to the concept of analyzing records of
`human activity to detect certain behaviors, and taking certain actions based
`on the results of the analysis.”), 28 (“Similarly, the present application
`implements the rules of an old process (i.e., prioritizing ticket sales for fan
`club members and other “true fans” of a performer) in a new environment
`(i.e., using data from social media accounts).”).
`
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`PGR2017-00038
`Patent 9,466,035
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`
`II. ANALYSIS
`A. Claim Construction
`“A claim in an unexpired patent shall be given its broadest reasonable
`construction in light of the specification of the patent in which it appears.”
`37 C.F.R. § 42.200(b). Pursuant to that standard, the claim language should
`be read in light of the specification, as it would be interpreted by one of
`ordinary skill in the art. In re Suitco Surface, Inc., 603 F.3d 1255, 1260
`(Fed. Cir. 2010). Thus, we generally give claim terms their ordinary and
`customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257
`(Fed. Cir. 2007) (“The ordinary and customary meaning ‘is the meaning that
`the term would have to a person of ordinary skill in the art in question.’”
`(quoting Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en
`banc))).
`Petitioner proposes express constructions for certain limitations.
`Pet. 17–21. Patent Owner does not propose any express constructions in its
`Preliminary Response. Prelim. Resp. 43–44. No express constructions are
`required by our Decision today.
`
`B. Section 325(d)
`“In determining whether to institute or order a proceeding under this
`chapter, chapter 30, or chapter 31, the Director may take into account
`whether, and reject the petition or request because, the same or substantially
`the same prior art or arguments previously were presented to the Office.” 35
`U.S.C. § 325(d); see also 37 C.F.R. § 42.4(a) (Director delegating institution
`authority to the Board). As discussed below, substantially the same prior art
`and arguments were previously presented to the Office during prosecution of
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`Patent 9,466,035
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`the ’811 patent. For that reason, and pursuant to § 325(d), we reject the
`Petition.
`
`1. Ground 1 -- Judicial exception to § 101
`Petitioner argues that all of the claims of the ’035 patent are directed
`to ineligible subject matter under the judicial exception to 35 U.S.C. § 101.
`Pet. 21–30. Under this judicial exception, claims may be ineligible for
`patent protection even though they are directed to one or more of the
`statutory classes of subject matter, i.e., a “process, machine, manufacture, or
`composition of matter” identified by 35 U.S.C. § 101. See, e.g., Ass’n for
`Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)
`(“We have long held that [§ 101] contains an important implicit exception.”)
`(quotation marks omitted). “Laws of nature, natural phenomena, and
`abstract ideas are not patentable.” Id.
`In Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132
`S. Ct. 1289 (2012), the Supreme Court set forth a two-step test for
`distinguishing patents that claim laws of nature, natural phenomena, and
`abstract ideas from those that claim patent-eligible applications of those
`concepts. First, we determine whether a patent claim is directed to one of
`those patent-ineligible concepts. Id. at 1296–97. If so, we then ask, “[w]hat
`else is there in the claim[] before us?” Id. at 1297. To answer that question,
`we consider the elements of the claim both individually and “as an ordered
`combination” to determine whether the additional elements “transform the
`nature of the claim” into a patent-eligible application. Id. at 1297–98.
`In FairWarning IP, LLC, vs. Iatric Systems, Inc., 839 F.3d 1089 (Fed.
`Cir. 2016), the Court of Appeals affirmed a district court’s holding that
`patent claims being asserted were invalid as patent-ineligible. The accused
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`infringer had moved to dismiss the complaint under Federal Rules of Civil
`Procedure Rule 12(b)(6) for failure to state a claim upon which relief can be
`granted. FairWarning, 839 F.3d at 1092. “Following the two-step test for
`patent-eligibility . . . , the [district] court first found the claims were directed
`to a patent-ineligible abstract idea: the concept of analyzing records of
`human activity to detect suspicious behavior.” Id. (citation and quotation
`marks omitted). “Turning to step two, the [district] court found that the
`claims contained nothing to transform the abstract idea into a patentable
`concept.” Id. (quotation marks and brackets omitted). The Court of Appeals
`agreed with the district court and affirmed. Id. at 1081.
`The thrust of Petitioner’s argument before us is that the claims of the
`’035 patent are ineligible for patenting because they are similar to the claims
`affirmed as patent-ineligible in FairWarning. Pet. 25–30. This is the same
`argument presented to the Examiner in the third party submission during
`prosecution of the ’811 patent. See Ex. 2002, 94–96. The Examiner rejected
`those arguments in a detailed analysis. Ex. 2002, 13–15.
`The claims of the ’811 patent are of very similar scope to those being
`challenged here. See, e.g., Prelim. Resp. 29–30 (side-by-side comparison of
`claim 1 of the ’035 patent and claim 1 of the ’811 patent). Moreover,
`Petitioner has not identified any differences between the claims of the ’811
`patent and those of the challenged ’035 patent, let alone any differences that
`could be material to our application of § 325(d). In other words, on the
`record presented, Petitioner’s patent-ineligibility arguments are substantially
`the same as those previously presented to the Office during prosecution of
`the ’811 patent.
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`Patent 9,466,035
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`
`2. Grounds 2 and 3 -- Obviousness Based on Scarborough et al.
`Petitioner argues that all of the claims of the ’035 patent are
`unpatentable because they would have been obvious over Scarborough and
`McEwen (claims 1, 4–9, 12–16, and 19) or Scarborough, McEwen, and
`Shivakumar (claims 2, 3, 10, 11, 17, and 18). Pet. 31–75. The Petition
`relies particularly on Scarborough. In fact, the Petition cites to Scarborough
`(Ex. 1004) for every limitation of every challenged claim. Id. at 32–36, 39,
`41, 43, 48, 50–51, 53–69, 71, 74–75 (claim charts). For some limitations,
`the Petition additionally relies on another reference. See, e.g., id. at 43
`(portion of claim chart for claim 1 citing to McEwen in addition to
`Scarborough), 71 (claim chart for claims 2 and 3 citing to Shivakumar in
`addition to Scarborough).
`
`a. Arguments and Art Previously Presented
`During prosecution of the ’811 patent, the third party submission
`presented a detailed claim chart purporting to map Scarborough to every
`limitation of every claim of the ’811 patent. Ex. 2002, 58–90. The
`Examiner considered the third party submission but concluded that
`Scarborough neither anticipated nor rendered obvious any claim of the ’811
`patent. Ex. 2002, 21. The Examiner based his decision to allow the claims
`of the ’811 patent, in part, on Scarborough failing to teach or suggest a
`requirement that is common to most of the claims of the ’811 patent and all
`of claims 1 through 18 of ’035 patent, namely the requirement to sort
`logins/users into three classes (e.g., priority, non-priority, and restricted). In
`that regard, the Examiner stated the following:
`[T]he Examiner has carefully considered the third party
`submissions provided under 37 CFR 1.290 and listed and
`initialed in the executed Form PTO/SB/429 attached to this
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`Patent 9,466,035
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`
`Official action. While U.S. Pat. Pub. No. 2015/0066546 to
`Scarborough et al. (“Scarborough”) bears some similarity to the
`instant application in desired outcome and in analysis of social
`media data for authorization of ticket purchases, the Examiner
`submits that it does not anticipate or render obvious the claims
`of the instant application. Scarborough discloses a ticket
`management system providing biased ticket offers to “good”
`actors. However, the instant application is clearly distinguished
`from Scarborough in that Scarborough makes a determination
`whether a user is a “good” actor based on an index being above
`(or below) a given threshold (Fig. 4; para. [0115]) and gives
`preferential treatment to good actors (para. [0115]). However, if
`the “good” actor threshold is not met, the system merely defaults
`to use of the normal protocol for ticket sales (Fig. 4; para.
`[0116]). In contrast, the instant application discloses and claims
`(e.g., claims 1, 8 and 15 and claims depending therefrom)
`generating an index and dividing the possible outcomes into
`three categories: index values above the first pre-determined
`threshold are given a priority ID (e.g., “good” actors) and are
`placed in a priority ticket purchase queue, index values below the
`first predetermined threshold value but above a second threshold
`(e.g., “normal” actors) and are placed in a general ticket purchase
`queue, and index values below the second threshold (e.g.,
`“robots” or “bad” actors) are restricted from purchasing tickets
`(Fig. 8; para. [101]). The Examiner submits that this 3-way
`decision tree disclosed in the instant application is not anticipated
`by and would not have been obvious over the 2-way decision
`disclosed in Scarborough.
`Ex. 2002, 20–21 (bold typeface removed).
`The remainder of the claims of the ’811 patent, like claim 19 of the
`’035 patent, require sorting logins into just two classes (e.g., priority and
`prohibited). Although the Examiner found that Scarborough teaches
`distinguishing between two classes, i.e., “good actors” and “other actors”
`(see, e.g., Ex. 1004 ¶66), the Examiner found that Scarborough did not teach
`a processor that “restricts ticket purchasing rights” of the other actors, as
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`recited by claims 19, 20, and 24 of the ’811 patent. In that regard, the
`Examiner stated the following:
`[T]he alternative 2-way embodiments disclosed in the claims of
`the instant application (e.g., claims 19, 20 and 24 and claims
`depending therefrom) are also distinct from that disclosed in
`Scarborough in that they provide priority ticket queue access
`when above the pre-determined threshold, but restrict access
`when below the pre-determined threshold as opposed to merely
`providing normal access to tickets, as disclosed in Scarborough,
`which is contrary and distinct from the disclosure of the instant
`application.
`Ex. 2002, 22 (bold typeface removed). The corresponding limitation of
`claim 19 of the ’035 patent is at least as narrow as the restricting ticket
`purchasing rights limitation of claims 19, 20, and 24 of the ’811 patent.
`Specifically, claim 19 of the ’035 patent recites that “the processor
`eliminates ticket purchasing rights for a login associated with a value under
`the threshold value.” (Emphasis added).
`
`b. Petitioner Raises the Same or Substantially the
`Same Prior Art and Arguments
`Petitioner’s obviousness challenges rely on the same or substantially
`the same prior art and arguments that were presented and rejected by the
`Examiner during prosecution of the ’811 patent. This is so notwithstanding
`Petitioner’s additional inclusion of McEwen and Shivakumar in its
`challenges.
`With respect to claim 1 (and by extension claims 2–18), Petitioner
`first argues that Scarborough alone discloses “three classes of actors …
`stratified according to ‘index value’ as recited in the claim.” Pet. 43. This is
`the same argument presented and rejected during prosecution of the ’811
`patent. See Ex. 2002, 22 (“The Examiner submits that this 3-way decision
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`tree disclosed in the instant application is not anticipated by and would not
`have been obvious over the 2-way decision disclosed in Scarborough.”).
`Petitioner, however, then argues that a different reference—
`McEwen—independently meets the limitations directed to sorting logins
`into three classes. Pet. 45 (“Additionally, McEwen discloses three tiers of
`users.”). In that regard, the Petition proceeds to explain how McEwen
`purportedly teaches three such tiers. Id. But, the Petition does not explain
`why a person of ordinary skill in the art would have incorporated that
`particular teaching from McEwen into Scarborough. Id. at 12–14. Indeed,
`the Petition does not even attempt an explanation.
`The Petition points out that Scarborough and McEwen are published
`applications belonging to Petitioner and generally argues that a person of
`ordinary skill in the art “looking at either Scarborough or McEwen would
`naturally look to related references generated by Petitioner, including
`Petitioner’s pending applications directed to related aspects of the same
`technology.” Pet. 12–13. However, the only specific reasoning Petitioner
`provides for combining McEwen with Scarborough is directed to a different
`feature of McEwen that Petitioner relies on for a different limitation. See id.
`at 13 (“A [person of ordinary skill in the art] would have understood that
`there were multiple known techniques for including this temporal
`information, and thus would have been motivated to combine Scarborough
`with McEwen’s teaching of a system that adjusts a user’s score upward ‘if
`the user has continuously/ repeatedly purchased 1 or 2 tickets . . . for rock
`concerts over the previous year.’”) (quoting Ex. 1005 (McEwen) ¶109).
`Without an adequate reason to incorporate McEwen’s purported teaching of
`three tiers into Scarborough, Petitioner’s challenge amounts to merely
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`rearguing that Scarborough alone meets the limitations directed to sorting
`logins into three classes.
`With respect to claim 19, Petitioner relies exclusively on Scarborough
`to meet the limitation that “the processor eliminates ticket purchasing rights
`for a login associated with a value under the threshold value.”5 Pet. 69.
`This is the same argument presented and rejected by the Examiner for
`meeting the corresponding limitation of, for example, claim 19 of the ’811
`patent reciting that “the processor restricts ticket purchasing rights for a
`login associated with a value under the threshold value.” See Ex. 2002, 22.
`Lastly, Petitioner does not rely on Shivakumar to cure the deficiencies
`the Examiner found in Scarborough. See Pet. 71, 74–75 (relying on
`Shivakumar only for limitations added by dependent claims 2, 3, 10, 11, 17,
`and 18).
`For the forgoing reasons, Petitioner’s obviousness challenges present
`the same or substantially the same prior art and arguments that were
`presented and rejected by the Examiner during prosecution of the ’811
`patent.
`
`III. CONCLUSION
`“In determining whether to institute [a post-grant review, among other
`proceedings, we] may take into account whether, and reject the petition or
`request because, the same or substantially the same prior art or arguments
`previously were presented to the Office.” 35 U.S.C. § 325(d). The Petition
`before us presents the same or substantially the same arguments and prior art
`
`
`5 This is not to say that Petitioner does not also rely on a declaration by
`Joseph Phinney, Ph.D. (Ex. 1020), but rather to say that the only prior art
`reference relied on for this limitation is Scarborough.
`
`17
`
`

`

`PGR2017-00038
`Patent 9,466,035
`
`as were presented to the Office during prosecution of the related ’811 patent.
`Accordingly, we may and do reject the Petition under 35 U.S.C. § 325(d).
`
`IV. ORDER
` In consideration of the foregoing, the Petition is denied.
`PETITIONER:
`
`Scott Kolassa
`Thomas Franklin
`Brian Brisnehan
`Alton Absher III
`KILPATRICK TOWNSEND & STOCKTON LLP
`skolassa@kilpatricktownsend.com
`tfranklin@kilpatricktownsend.com
`bbrisnehan@kilpatricktownsend.com
`aabsher@kilpatricktownsend.com
`
`PATENT OWNER:
`
`Joel Weiss
`WEISS & ARONS
`jweiss@weissarons.com
`
`18
`
`