`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LIVE NATION ENTERTAINMENT, INC.
`
`Petitioner
`
`v.
`
`SONGKICK.COM BV
`
`Patent Owner
`
`
`
`
`
`
`Case
`Patent 9,466,035
`
`
`
`
`
`PETITION FOR POST GRANT REVIEW
`
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`
`
`
`
`

`

`Table of Contents
`
`
`
`I.
`II.
`
`Introduction ...................................................................................................... 1
`Formalities ....................................................................................................... 1
`A.
`Real Party in Interest (37 C.F.R. § 42.8(b)(1)) ..................................... 1
`B.
`Related Matters (37 C.F.R. § 42.8(b)(2)) .............................................. 2
`C.
`Designation of Lead Counsel (37 C.F.R. § 42.8(b)(3)) ........................ 2
`D.
`Service (37 C.F.R. § 42.8(b)(4)) ........................................................... 2
`E.
`Power of Attorney (37 C.F.R. § 42.10(b)) ............................................ 3
`F.
`Payment of Fees (37 C.F.R. § 42.15) .................................................... 3
`G.
`Timing (37 C.F.R. § 42.202) ................................................................. 3
`H.
`Standing ................................................................................................. 4
`Statement of Relief Requested ........................................................................ 4
`III.
`IV. Factual Background ......................................................................................... 5
`A.
`Summary of the ’035 Patent .................................................................. 5
`B.
`Summary of the Prior Art and Exemplary Motivations to Combine .. 11
`1.
`Scarborough .............................................................................. 11
`a.
`Disclosure ....................................................................... 11
`b. Motivation to Combine Scarborough with McEwen ..... 12
`2. McEwen .................................................................................... 14
`3.
`Shivakumar ............................................................................... 14
`a.
`Disclosure ....................................................................... 14
`b. Motivation to Combine Shivakumar with Scarborough
`and McEwen ................................................................... 15
`Claim Construction ........................................................................................ 17
`A.
`Person of Ordinary Skill in the Art ..................................................... 17
`B.
`Construction of Key Claim Terms ...................................................... 17
`1.
`“receiver” [all claims] ............................................................... 18
`2.
`“login” [all claims] .................................................................... 18
`3.
`“tagging of a photograph of a performing entity associated with
`the event” [claims 2, 10, and 17] and “linking of a photograph
`
`V.
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`i
`
`
`

`

`2.
`
`3.
`
`of a performing entity associated with the event to the profile of
`a social media ID [or other data source identification
`information]” [claims 3, 11, and 18] ......................................... 18
`“real-time” [claim 8] ................................................................. 20
`4.
`“flag” [all claims] ...................................................................... 20
`5.
`VI. Statement of Reasons for Relief Requested .................................................. 21
`A. All claims of the ’035 patent should be cancelled because they are
`directed to ineligible subject matter. ................................................... 21
`1.
`Claims Similar to the Present Claims Were Found Ineligible in
`FairWarning IP, LLC, vs. Iatric Systems, Inc. ......................... 25
`Like the FairWarning Patent Claims, the ’035 Patent Claims
`are Directed to an Abstract Idea (Alice Step 1). ....................... 26
`Like the FairWarning Patent, the ’035 Patent Claims Do Not
`Include Additional Elements Sufficient to Transform the
`Abstract Idea into a Patent-Eligible One (Alice Step 2). .......... 29
`Claims 1, 4-9, 12-16, and 19 should be canceled under § 103 as
`obvious over Scarborough in view of McEwen. ................................. 31
`1.
`Scarborough is Prior art to the ʼ035 Patent. .............................. 32
`2. McEwen is Prior art to the ʼ035 Patent. .................................... 32
`3.
`Claim 1 ...................................................................................... 32
`4.
`Claim 4 ...................................................................................... 50
`5.
`Claims 5-6 ................................................................................. 51
`6.
`Claim 7 ...................................................................................... 53
`7.
`Claim 8 ...................................................................................... 54
`8.
`Claim 9 ...................................................................................... 60
`9.
`Claim 12 .................................................................................... 60
`10. Claim 13 .................................................................................... 60
`11. Claim 14 .................................................................................... 60
`12. Claim 15 .................................................................................... 61
`13. Claim 16 .................................................................................... 67
`14. Claim 19 .................................................................................... 67
`
`B.
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`ii
`
`
`

`

`C.
`
`Claims 2, 3, 10, 11, 17, and 18 should be canceled under 35 U.S.C.
`§ 103 as obvious over Scarborough in view of McEwen further in
`view of Shivakumar............................................................................. 70
`1.
`Shivakumar is prior art to the ’035 Patent ................................ 70
`2.
`Claims 2 and 3 ........................................................................... 71
`3.
`Claim 10 .................................................................................... 74
`4.
`Claim 11 .................................................................................... 74
`5.
`Claim 17 .................................................................................... 74
`6.
`Claim 18 .................................................................................... 75
`VII. Conclusion ..................................................................................................... 75
`
`
`
`
`
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`iii
`
`
`

`

`List of Exhibits
`
`1001 U.S. Patent No. 9,466,035 to Merriman et al. (the “’035 patent”)
`
`1002 Assignment History for the ʼ035 patent
`
`1003
`
`File History for U.S. Patent App. No. 14/595,797, which issued as the
`ʼ035 patent
`
`1004 U.S. Patent Pub. No. 2015/0066546 to Scarborough et al.
`
`1005 U.S. Patent Pub. No. 2016/0078370 to McEwen et al.
`
`1006 U.S. Patent Pub. No. 2015/0134371 to Shivakumar et al.
`
`1007
`
`1008
`
`1009
`
`Excerpts from Harry Newton, Newton’s Telecom Dictionary, 24th ed.
`2008.
`
`Curriculum Vitae of Dr. Joshua W. Phinney, Ph.D., P.E.
`
`List of Materials Relied Upon by Dr. Joshua W. Phinney, Ph.D., P.E.
`
`1010 Here's What 'Hamilton' Tickets Cost Now That Lin-Manuel Miranda Has
`Left The Show retrieved from https://mic.com/articles/149343/cheap-
`hamilton-tickets-how-to-get-lin-manuel-miranda#.vtayMY0kc
`
`1011 Paulson, Michael. ‘Hamilton’ Hits a New High: The Most Money
`Grossed in a Week on Broadway. The New York Times, November 28,
`2016.
`
`1012
`
`1013
`
`Sisario, Ben. Congress Moves to Curb Ticket Scalping, Banning Bots
`Used Online. The New York Times, December 8, 2016.
`
`Flyn, Cal. The Bot Wars: why you can never buy concert tickets online.
`New Statesman, August 6, 2013.
`
`1014 Ulanoff, Lance. Is Facebook Identity the Key to Concert Ticket Sales?
`Mashable, February 22, 2013.
`
`1015 Hill, David. Artificial Intelligence Will Defeat CAPTCHA — How Will
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`iv
`
`
`

`

`We Prove We’re Human Then? SingularityHub, August 28, 2012.
`
`1016 Waddell, Ray. Ticketmaster Launches New Facebook App. Billboard,
`January 18, 2012.
`
`1017 Davis, Clayton et al. BotOrNot: A System to Evaluate Social Bots.
`WWW’16 Companion, April 11–15, 2016, Montréal, Québec, Canada
`
`1018
`
`Considine, Austin. Buying Their Way to Twitter Fame. New York
`Times, August 22, 2012
`
`1019 How to Spot a Social Bot on Twitter, MIT Technology Review, July 28,
`2014
`
`1020 Declaration of Joshua Phinney, Ph.D.
`
`
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`v
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`
`I.
`
`INTRODUCTION
`
`
`
`Through counsel, real party in interest Live Nation Entertainment, Inc.
`
`(“Petitioner” or “Live Nation”) petitions for initiation of post-grant review of U.S.
`
`Patent No. 9,466,035 (“the ’035 patent” or “Merriman patent”). Ex. 1001, ’035
`
`patent. The ’035 patent is currently assigned to SongKick.com BV. See Exhibit
`
`1002. The ’035 patent issued on October 11, 2016, less than nine months before
`
`the filing of this petition. The claims of the ’035 patent are unpatentable for
`
`multiple reasons.
`
`First, each and every claim of the ’035 patent is directed to subject matter
`
`that is not eligible for patent protection.
`
`Second, all of the claims of the ’035 patent are invalid in view of the prior
`
`art. Claims 1, 4-9, 12-16, and 19 are rendered obvious by Scarborough in view of
`
`McEwen. Claims 2, 3, 10, 11, 17, and 18 are rendered obvious by the combination
`
`of Scarborough in view of McEwen and further in view of Shivakumar.
`
`II.
`
`FORMALITIES
`
`A. Real Party in Interest (37 C.F.R. § 42.8(b)(1))
`
`Pursuant to 37 C.F.R. § 42.8(b)(1), Petitioner certifies itself, Live Nation
`
`Entertainment, Inc., a corporation organized under the laws of the State of
`
`California, as the real party-in-interest.
`
`
`
`
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`1
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`
`
`
`B. Related Matters (37 C.F.R. § 42.8(b)(2))
`
`Pursuant to 37 C.F.R. § 42.8(b)(2), Petitioner is aware of no other matters
`
`involving the ’035 patent.
`
`C. Designation of Lead Counsel (37 C.F.R. § 42.8(b)(3))
`
`Pursuant to 37 C.F.R. § 42.8(b)(3), lead counsel for this Petition is Scott
`
`Kolassa, Reg. No. 55,337, of Kilpatrick Townsend & Stockton LLP. Backup
`
`counsel for this Petition are Thomas D. Franklin, Reg. No. 43,616, Alton Absher,
`
`Reg. No. 60,687, and Brian J. Brisnehan, Reg. No. 60,462, all of Kilpatrick
`
`Townsend & Stockton LLP.
`
`D.
`
`Service (37 C.F.R. § 42.8(b)(4))
`
`Pursuant to 37 C.F.R. § 42.8(b)(4), a copy of the present petition, in its
`
`entirety, is being served to the following address of the attorney or agent of record
`
`for Patent Owner:
`
`Joel Weiss
`Weiss & Arons
`1540 Route 202
`Suite 8
`Pomona, NY 10970
`
`Petitioner may be served via its counsel, Kilpatrick Townsend & Stockton,
`
`or via email at LiveNation_SongKickPGR@kiltown.com.
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`2
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`
`
`
`E.
`
`Power of Attorney (37 C.F.R. § 42.10(b))
`
`In accordance with 37 C.F.R. § 42.10(b) Petitioner is filing a power of
`
`attorney designating the above-identified counsel with this Petition.
`
`F.
`
`Payment of Fees (37 C.F.R. § 42.15)
`
`This petition is accompanied by a payment of $32,200 and requests review
`
`of fewer than 20 claims of the Merriman patent. See 37 C.F.R. § 42.15. The fees
`
`include (1) the $12,000 Post-Grant Review Request Fee, and (2) the $18,000 Post-
`
`Grant Review Institution Fee, and (3) the $2,200 additional Post-Grant Review
`
`Institution Fee because Petitioner is challenging 19 claims, which is 4 in excess of
`
`15. The Commissioner is hereby authorized to charge any fees required by this
`
`action or any future action to Deposit Account No. 20-1430. Thus, this petition
`
`meets the fee requirements under 35 U.S.C. § 312(a)(1).
`
`G. Timing (37 C.F.R. § 42.202)
`
`The ’035 patent issued on October 11, 2016. Pursuant to 37 C.F.R. §
`
`42.202(a), a petition for post-grant review of a patent must be filed no later than
`
`the date that is nine months after the date of the grant of a patent. Because the
`
`deadline to file a petition for post-grant review of the ’035 patent is July 11, 2017,
`
`this Petition is timely filed.
`
`
`
`
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`3
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`
`H.
`
`Standing
`
`
`
`Petitioner hereby certifies that the ’035 patent is available for post-grant
`
`review and that Petitioner is not barred or estopped from requesting a post-grant
`
`review challenging the patent claims on the grounds identified in this Petition.
`
`The ’035 patent was filed on January 13, 2015, which is after March 13,
`
`2013, and does not claim priority to any earlier application, making the ’035 patent
`
`subject to the first-inventor-to-file provisions of the America Invents Act.
`
`Moreover, as set forth in Section G above, this Petition is filed within nine months
`
`after the date of the grant of the ’035 patent. Accordingly, the ’035 patent is
`
`eligible for post-grant review. Furthermore, Petitioner has not filed a civil action
`
`challenging the validity of a claim of the ’035 patent. Accordingly, Petitioner is
`
`not barred or estopped from requesting a post-grant review challenging the patent
`
`claims on the grounds identified in this petition.
`
`III. STATEMENT OF RELIEF REQUESTED
`
`Pursuant to 35 U.S.C. § 321, this petition requests:
`
`• cancellation of all claims (1-19) of the ’035 patent as being directed
`
`towards subject matter ineligible for patent protection under 35 U.S.C.
`
`§ 101;
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`4
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`
`
`
`• cancellation of claims 1, 4-9, 12-16, and 19 of the ’035 patent as rendered
`
`obvious under 35 U.S.C. § 103 by U.S. Publication No. 2015/0066546 to
`
`Scarborough et al. (“Scarborough”) in view of U.S. Publication No.
`
`2016/0078370 to McEwen et al. (“McEwen”); and
`
`• cancellation of claims 2, 3, 10, 11, 17, and 18 of the ’035 patent as
`
`rendered obvious under 35 U.S.C. § 103 by U.S. Publication No.
`
`Scarborough in view of McEwen further in view of U.S. Publication No.
`
`2015/0134371 to Shivakumar et al. (“Shivakumar”).
`
`IV. FACTUAL BACKGROUND
`
`A.
`
`Summary of the ’035 Patent
`
`The application that issued as the ’035 patent was filed on January 13, 2015,
`
`and did not claim an earlier priority date. See Ex. 1001, ’035 patent. Generally,
`
`the ’035 patent concerns identifying different classes of ticket purchasers based on
`
`social media account history and other data. ’035 patent, Abstract. More
`
`specifically, the ’035 Patent uses “social queuing” to award priority access to
`
`tickets to certain classes of purchasers, identify whether an entity seeking tickets is
`
`human or automated (a computer), restrict access to automated purchasers. ’035
`
`patent, Abstract; col. 3 ll. 1-8; col. 12 ll. 11-22.
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`5
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`
`
`
`For the purposes of this application, “social queuing”
`may be understood to be prioritizing entity-loyal event
`participants in the ticket purchasing queue based on
`account history corresponding to social media IDs.
`Social queuing may also include limiting access, or
`denying access to certain participants based on account
`history corresponding to social media IDs or other
`suitable indicia. In addition, social queuing may be
`based on activity identifying information 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.
`
`’035 patent, col. 3, ll. 2-13.
`
`In “social queuing,” prioritization
`
`begins when an entity logs in intending to
`
`purchase tickets. ’035 patent, Fig. 3, col. 1
`
`ll. 60-67, claims 1, 8, 15 and 19. Account
`
`history (e.g., social media information)
`
`associated with the login is retrieved from
`
`third party data sources. ’035 patent, Fig.
`
`3, col. 2 ll. 1-2, claims 1, 8, 15 and 19.
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`6
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`This information is used to calculate an “index value” associated with the login.
`
`
`
`See ’035 patent, col. 2 ll. 2-4, col. 6 ll. 19-43, claims 1, 8, 15, 19.
`
`The index value may be based, at least in part, on the
`retrieved account history. The index value may be based,
`at least in part, on the retrieved information from sites
`related, or otherwise linked, to the social media site.
`
`’035 patent, col. 6 ll. 21-24. The ’035 patent describes calculating the index value
`
`by allocating or adding “points” for various criteria associated with the prospective
`
`purchaser:
`
`
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`7
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`’035 patent, Fig 5, col. 12 l. 23-col. 13 l. 8. This index value is then used to
`
`
`
`prioritize putative purchasers into one of two or three general categories—priority
`
`(fan), non-priority (normal), and restricted (machine). ’035 patent, Figs. 6 and 8,
`
`col. 13 l. 40-col. 14 l. 8, col. 14 ll. 30-47. These categories are used to enhance,
`
`allow, or restrict access to ticket purchasing opportunities:
`
`When the index value associated with a login is above (or
`below, in other embodiments) a pre-determined threshold
`value, the processor may be further configured to assign
`a priority flag to the login. The priority flag may enable a
`real-time ticket event purchase not available in real-time
`to a non-flagged login.
`
`’035 patent, col. 6 ll. 25-30; see also claims 1, 8 and 15.
`
`The filtering of social media IDs or third party data
`source identification information may be performed to
`eliminate, or limit, purchasing rights of certain sub-
`optimal
`ticket purchasers such as potential
`ticket
`resellers. As mentioned above, such potential resellers
`may preferably provide automated software utilizing
`APIs (or not utilizing APIs) for attempting to purchase
`tickets.
`
`’035 patent, col. 10 ll. 23-29; see also claims 1, 8, 15 and 19 and Fig. 8:
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`8
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`
`
`
`
`
`In other words, if the index value suggests that the purchaser is an “entity loyal
`
`participant” (a big fan) of the event such that the user’s login is assigned a priority
`
`“flag,” the purchaser may have access to tickets not available to lesser fans.
`
`Conversely, if the index value suggests that the purchaser is an automated entity,
`
`which in turn suggests a reseller, the purchaser’s access to tickets may be even
`
`more limited than that granted to lesser fans.
`
`All of the independent claims of the ’035 patent are directed to distributing
`
`event tickets to purchasers, prioritizing some purchasers over others based on
`
`social media account history or other information corresponding to an event ticket
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`9
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`purchase login. See ’035 patent, independent claims 1, 8, 15, 19. All of the
`
`
`
`independent claims require retrieving social media information (“or other data
`
`source information” in the case of claim 1) associated with a login and using that
`
`information to calculate an “index value.” The index value is then used to time-
`
`prioritize access to event tickets (claims 1 and 8), prioritize access to groups of
`
`tickets, for example by desirability (claim 15), or more generally allow the
`
`purchase of tickets (claim 19). All of the independent claims restrict (claims 1 and
`
`8) or deny/eliminate (claims 15 and 19) access to the tickets if the index value is
`
`below a certain threshold, which may indicate that the login is associated with an
`
`automated ticket purchaser (claims 8, 15 and 19).
`
`The dependent claims all add the requirement of specific social media or
`
`other online activities. Claims 9 and 16 add the requirement that the account
`
`history include “time stamped indications of affinity for a performing entity
`
`associated with the event”; the ’035 patent gives the example that “expression[s]
`
`of affinity for [a] band … may include a finding of “love” or “like” within a pre-
`
`determined number of words of the band.” ’035 patent, 12:32-34. A person of
`
`ordinary skill in the art—indeed, a lay person—would recognize that such
`
`expressions would include a “like” on Facebook. See ’035 patent, 7:59-65
`
`(referring to Facebook as a source of information). Claims 2, 10 and 17 add the
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`10
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`requirement that the account history include “tagging a photograph of a performing
`
`
`
`entity associated with the event.” Claims 3, 11 and 18 add the requirement of
`
`“linking of a photograph of a performing entity associated with the event to the
`
`profile of the social media ID” or other “data source identification information”
`
`(claims 11 and 18). Claims 4 and 12 add the requirement that the account history
`
`include an “indication of a threshold amount of streaming audio time related to a
`
`performing entity associated with the event.” Claims 5 and 13 add the requirement
`
`that the account history include “one or more parameters that indicate whether
`
`each of the plurality of logins is related to an automated entity or a human entity.”
`
`Claims 6 and 14 add the requirement that such “parameters include at least one of
`
`number of friends on the account, ticket purchasing frequency or location of
`
`historic ticket purchases and historic reaction time to ticket offers” to claims 5 and
`
`13. Claim 7, which depends from claim 1, adds the requirement that the “login
`
`includes social media identification information.”
`
`B.
`
`Summary of the Prior Art and Exemplary Motivations to
`Combine
`
`1.
`
`Scarborough
`
`a.
`
`Disclosure
`
`Scarborough, which is assigned to Petitioner, discloses “techniques …
`
`regarding obtaining tickets for an event,” where a “ticket management system” that
`11
`
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`“uses one or more characteristics of actors” (putative ticket purchasers) to bias
`
`
`
`“ticket offerings towards select actors.” (Scarborough, Abstract; ¶¶ 28, 32.)
`
`Scarborough discloses at least three classes of actors—“good actors,” “bad actors”
`
`and “other actors”—and biasing in favor of good actors and against bad actors.
`
`¶¶ 35, 58-59, 63, 66-67.
`
`b. Motivation to Combine Scarborough with McEwen
`
`A person of ordinary skill in the art (“POSITA”) would have been motivated
`
`to combine the teachings of Scarborough with those of McEwen for multiple
`
`reasons. The applicant for both Scarborough and McEwen is the Petitioner here.
`
`Scarborough and McEwen are directed to different aspects of the Petitioner’s
`
`systems for facilitating the purchase of tickets to events. See, e.g., Scarborough at
`
`Abstract (“Techniques herein attempt to provide actors with more flexible and
`
`satisfactory experience regarding obtaining tickets for an event.”); McEwen ¶ 4
`
`(“In one embodiment, the present disclosure provides a method and system for
`
`offering tickets to an event to users in an iterative and prioritized manner.”);
`
`Phinney Decl., ¶ 76. Live Nation’s business included at the time of the alleged
`
`invention (and still includes) event ticket sales. Id. Thus, a person of ordinary
`
`skill looking at either Scarborough or McEwen would naturally look to related
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`12
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`references generated by Petitioner, including Petitioner’s pending applications
`
`
`
`directed to related aspects of the same technology
`
`Moreover, modifying Scarborough to determine that an indication of affinity
`
`has a timestamp earlier than the time the actor logged into Scarborough’s system
`
`would have been the combination of elements according to known methods,
`
`yielding a predictable result. Phinney Decl., ¶ 78. For example, Scarborough
`
`states that its “attributes relating to interaction with other electronic systems” may
`
`“include temporal information about such interactions, such as how long ago an
`
`actor ‘liked’ a performer’s Facebook page or started following the performer,” as
`
`well as “how long the actor has been a member of the group.” Scarborough, ¶¶ 45-
`
`46. A POSITA 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.” McEwen, ¶ 109. A person of ordinary
`
`skill in the art reading the disclosure of Scarborough would understand that such
`
`purchasing a ticket is an indication of affinity, and knowing that tickets were
`
`purchased over the previous year would require that time-stamps that predate the
`
`login. Phinney Decl., ¶ 78. A POSITA would thus have been motivated to
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`13
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`combine these known methods, yielding the predictable result of providing a
`
`
`
`system that retrieves and identifies indications of affinity that were time-stamped
`
`before the system received the actor’s login.
`
`2. McEwen
`
`McEwen, which is also assigned to Petitioner, discloses a “ticket
`
`management system” that a “user 105 can … use … to identify offer information
`
`and/or to purchase a ticket for an event.” ¶ 30. McEwen uses “scores” and
`
`“characteristics” to “prioritize” requests for tickets based on those scores,
`
`“search[ing] for tickets for requests in a high-prioritization group before searching
`
`for tickets for request in a lower prioritization group” and “inhibiting” use of the
`
`system by users whose scores are below a certain threshold. ¶¶ 110-113; see also
`
`Fig. 7.
`
`3.
`
`Shivakumar
`
`a.
`
`Disclosure
`
`Shivakumar discloses an “online scrapbook” of “ticketed event information
`
`and associated photos, comments or other mementos associated with … ticketed
`
`events,” including “a timeline of future and past” events that may be “shar[ed]
`
`through social networking” and where “photos may be gathered from social
`
`networking sites associated with the user.” Shivakumar, Abstract; see also ¶¶ 53,
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`14
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`56, 60, and 84-85, Figs. 3 and 7. Shivakumar discloses a social media extension or
`
`
`
`information aggregator. Phinney Decl., ¶171.
`
`b. Motivation to Combine Shivakumar with
`Scarborough and McEwen
`
`A POSITA would have been motivated to combine the teachings of
`
`Shivakumar with those of Scarborough and McEwen for multiple reasons. One
`
`reason is that modifying Scarborough and McEwen to use data from Shivakumar’s
`
`“online scrapbook” of “digital memorabilia” uses known sources of web-based
`
`data in the context of evaluating the online expressions and behavior of potential
`
`ticket purchasers to yield a predictable result. For instance, a fan of a particular
`
`band might be expected to tag and/or link a photograph from their attendance at an
`
`event. It would be obvious to a person of ordinary skill that such online behavior
`
`indicates a likelihood that a consumer will purchase tickets – not to resell those
`
`tickets – but to actually attend an event. Scarborough and McEwen both
`
`contemplate collecting data from other web-based data sources. See, e.g.,
`
`Scarborough, ¶ 45 (discussing “interaction with other electronic systems”);
`
`McEwen ¶ 107 and associated table (providing example techniques for generating
`
`a score, including Amazon Prime®). Given the finite number and types of such
`
`sources, a POSITA would have been motivated to improve Scarborough and
`
`McEwen by combining their teachings with those of Shivakumar, which discloses
`15
`
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`a social media extension or information aggregator as another web-based data
`
`
`
`source for use in the account ticketing techniques and ticket management systems
`
`of Scarborough and McEwen. Phinney Decl., ¶¶ 172-73.
`
`Another motivation to combine is that Scarborough, McEwen, and
`
`Shivakumar are in the same general field, including the field of facilitating the
`
`purchase of tickets to events. See, e.g., Scarborough at Abstract (“Techniques
`
`herein attempt to provide actors with more flexible and satisfactory experience
`
`regarding obtaining tickets for an event.”); McEwen ¶ 4 (“In one embodiment, the
`
`present disclosure provides a method and system for offering tickets to an event to
`
`users in an iterative and prioritized manner.”); Shivakumar ¶ 28 (“Beginning with
`
`FIG. 1, an exemplary embodiment of a computing system adapted for
`
`implementing the selection and purchase of tickets for ticketed events and/or, if
`
`desired, the automatic generation and maintenance of user scrapbook webpages
`
`associated with ticketed events is illustrated in block diagram format.”); Phinney
`
`Decl., ¶¶ 174-75.
`
`Yet another independent motivation to combine Scarborough with
`
`Shivakumar is that the applicant of each was at the time of the alleged invention
`
`(and still is today) in a business that includes event ticket sales. Phinney Decl., ¶
`
`176. As noted above, Petitioner Live Nation Entertainment, Inc. is the applicant of
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`16
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`Scarborough and McEwen. StubHub, Inc., the applicant of the Shivakumar
`
`
`
`reference, is also in the event ticket sales business. Id.
`
`V. CLAIM CONSTRUCTION
`
`A.
`
`Person of Ordinary Skill in the Art
`
`A person of ordinary skill in the art (“POSITA”) of the ’035 patent is a
`
`person with at least a Bachelor of Science degree in computer science, computer
`
`engineering, or electrical engineering, and two to four years of experience in
`
`electronic commerce, social media, or related experience. Phinney Decl., ¶¶ 13-14.
`
`Dr. Phinney was a person of at least ordinary skill in the art in at the time that the
`
`application for the ’035 patent was filed and knew and worked with persons of
`
`ordinary skill in the art at that time. See id.
`
`B. Construction of Key Claim Terms
`
`The ʼ035 patent has not expired. In post-grant review, claim terms of an
`
`unexpired patent are interpreted under a “broadest reasonable construction”
`
`standard. See 37 C.F.R. § 42.200(b). The interpretation of the claims in the ’035
`
`patent presented, either implicitly or explicitly, herein should not be viewed as
`
`constituting, in whole or in part, Petitioner’s own interpretation of such claims for
`
`the purposes of any litigation or proceeding where the claim construction standard
`
`KILPATRICK TOWNSEND 69510804 1
`
`
`17
`
`
`

`

`PGR
`Petition for Post Grant Review
`
`
`differs from the broadest reasonable interpretation, but instead should be viewed as
`
`
`
`the broadest reasonable claim construction.
`
`1.
`
`“receiver” [all claims]
`
`“Receiver” means “hardware and/or software for receiving communications
`
`through a medium.” See, e.g.,’035 patent, 3:65-4:1; id. at 5:8-12; Phinney Decl.,
`
`¶¶ 48-49.
`
`2.
`
`“login” [all claims]
`
`“Login” means “information identifying a user.” See, e.g., ’035 patent,
`
`1:60-67; Phinney Decl., ¶¶ 50-51.
`
`3.
`
`“tagging of a photograph of a performing entity associated
`with the event” [claims 2, 10, and 17] and “linking of a
`photograph of a performing entity associated with the event
`to the profile of a social media ID [or other data source
`identification information]” [claims 3, 11, and 18]
`
`“Tagging” as recited in claims 2, 10, and 17 and “linking” as recited in
`
`claims 3, 11, 18 have the same meaning. Phinney Decl., ¶ 53. For example, the
`
`ʼ035 patent explains that “linking of the photograph of the performing entity
`
`associated with the event to the profile of the social media ID may be the same as,
`
`or different from, the tagging of a photograph of the performing entity associated
`
`with the event to the profile of the social media ID.” Col. 6:52-56. Because the
`
`ʼ035 patent states that linking “may be the same as” tagging, then a POSITA would
`
`