Adobe Systems Incorporatedv.Afluo, LLC

Patent Trial and Appeal Board

Apr 9, 2015

08644204 (P.T.A.B. Apr. 9, 2015)

Trials@uspto.gov Paper No. 27
571.272.7822 Entered: April 9, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

ADOBE SYSTEMS INCORPORATED
and
LEVEL 3 COMMUNICATIONS, LLC,
Petitioner,

v.

AFLUO, LLC,
Patent Owner.
____________

Case IPR2014-00153
Patent 5,995,091
____________

Before MICHAEL W. KIM, WILLIAM V. SAINDON, and
TINA E. HULSE, Administrative Patent Judges.

HULSE, Administrative Patent Judge.

FINAL WRITTEN DECISION
36 U.S.C. § 318(a) and 37 C.F.R. § 42.73

IPR2014-00153
Patent 5,995,091
2
INTRODUCTION I.
Adobe Systems Incorporated and Level 3 Communications, LLC
(collectively, “Petitioner”) filed a Petition requesting inter partes review of
claims 1 and 4–12 of U.S. Patent No. 5,995,091 (Ex. 1001, “the ’091
patent”). Paper 1 (“Pet.”). Afluo, LLC (“Patent Owner”) filed a Preliminary
Response to the Petition. Paper 7. On April 29, 2014, we instituted an inter
partes review of claims 1, 4, and 8 on certain grounds of unpatentability
alleged in the Petition. Paper 8 (“Dec. Inst.”), 25. After institution of trial,
Patent Owner filed a Patent Owner Response (Paper 13, “PO Resp.”), to
which Petitioner filed a Reply (Paper 17, “Pet. Reply”).
Patent Owner filed a Motion for Observation (Paper 20) on certain
cross-examination testimony of Petitioner’s declarant, and Petitioner filed a
Response (Paper 23).
A consolidated oral hearing for this proceeding and Case IPR2014-
00154 was held on November 24, 2014, a transcript of which has been
entered in the record. Paper 26 (“Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
For the reasons that follow, we determine that Petitioner has shown by
a preponderance of the evidence that claims 1, 4, and 8 of the ’091 patent are
unpatentable.
A. Related Proceedings
Patent Owner has asserted the ’091 patent against Petitioner in a
copending district court case, Afluo LLC v. Adobe Systems Inc., 1:12-cv-
01459-SLR (D. Del.). Pet. 1–2; Paper 5.
IPR2014-00153
Patent 5,995,091
3
B. The ’091 Patent (Ex. 1001)
The ’091 patent relates to a multimedia system for providing
“consistent, timed, coordinated playback of images and/or sounds despite
differences in playback system speed or configuration.” Ex. 1001, 1:6–9.
The multimedia system of the ’091 patent includes three functional
elements: an authoring tool element, an interleaver element, and a playback
interpreter element. Id. at 3:29–32.
The authoring tool element allows an author to build a presentation
“script” that contains a sequence of multimedia data elements, such as
images and sounds. Id. at 3:32–35. The author also uses the authoring tool
element “to specify . . . playback at specified times at a selected system
bandwidth.” Id. at 3:36–38. The authoring tool then checks to determine if
a playback system would have sufficient time to load the data required to
play back the multimedia data within the specified bandwidth at the
specified times. If there is sufficient time, the authoring tool allows the
multimedia data to be interleaved for playback at the specified times. Id. at
7:64–8:12.
The interleaver element generates a playback data stream from the
presentation script according to the specified playback times. Id. at 3:39–52.
The interleaver element places the multimedia data elements, such as images
and sounds, and commands one after another to form the interleaved
playback data stream. Id. at 9:44–50.
The playback interpreter element reproduces the images and sounds
sequenced in the playback data stream. Id. at 5:10–13. The playback
interpreter element also interprets the interleaved commands to provide an
interactive presentation. Id. at 5:13–16.
IPR2014-00153
Patent 5,995,091
4
C. Illustrative Claim
Claims 1 and 8 are independent claims, and claim 4 depends from
claim 1. Claim 1 is illustrative and is reproduced below:
1. A computer implemented method for generating a
multimedia presentation data stream of at least one of images
and sounds for timed, coordinated reproduction of said at least
one of images and sounds, comprising the steps of:
generating a list specifying a plurality of data elements
representing at least one of images and sounds and, for at
least some of said data elements, specifying one or more
times for playback of said images and sounds;
selecting a playback bandwidth with which to deliver at least
one of said images or sounds;
identifying from said list said data elements and said one or
more times for playback of said images and sounds;
dividing each of said data elements into one or more data
portions; and
combining said data portions in a multimedia presentation
data stream for delivery of said data portions to a
computer system within said selected bandwidth for
timed coordinated reproduction of said at least one of
images and sounds.

D. Ground of Unpatentability Instituted for Trial
We instituted trial based on the following ground of unpatentability:
Claims Basis Reference
1, 4, and 8 § 102(e) Cruz
1

1
Cruz et al., US 5,594,911, filed July 13, 1994, and issued Jan. 14, 1997
(Ex. 1003).
IPR2014-00153
Patent 5,995,091
5
ANALYSIS II.
A. Claim Construction
In an inter partes review, the Board interprets claim terms in an
unexpired patent according to the broadest reasonable construction in light
of the specification of the patent in which they appear. See In re Cuozzo
Speed Techs., LLC, No. 2014-1301, 2015 WL 448667, at *5–8 (Fed. Cir.
Feb. 4, 2015); 37 C.F.R. § 42.100(b). Under that standard, and absent any
special definitions, we give claim terms their ordinary and customary
meaning, as would be understood by one of ordinary skill in the art at the
time of the invention. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257
(Fed. Cir. 2007). Any special definitions for claim terms must be set forth
with reasonable clarity, deliberateness, and precision. See In re Paulsen, 30
F.3d 1475, 1480 (Fed. Cir. 1994).
The parties disagree on the construction of “selecting a playback
bandwidth with which to deliver at least one of said images or sounds,”
which appears in claim 1. In the Decision to Institute, we construed this
limitation as “selecting a range of rates within which to deliver at least one
of said images or sounds for playback.” Dec. Inst. 9. Petitioner does not
contest this claim construction, stating that it is proper under the broadest
reasonable interpretation standard. Pet. Reply. 1. Patent Owner asserts that
this limitation should be construed as “choosing a rate in preference to other
rates with which to deliver said at least one of images or sounds.” PO
Resp. 3.
1. “playback bandwidth with which to deliver at least one of
said images or sounds”
Patent Owner first takes issue with our preliminary construction that a
“playback bandwidth” is a “range of rates” within which to deliver
IPR2014-00153
Patent 5,995,091
6
multimedia objects. Id. at 4. In the Decision to Institute, we construed the
limitation as a range of rates due to the Specification’s consistent reference
to the delivery of multimedia objects “within an author-selected bandwidth.”
Dec. Inst. 9; Ex. 1001, 3:64–4:1, Abstract. Patent Owner and its declarant,
Dr. Kevin C. Almeroth, contend that a person of ordinary skill in the art
would understand “within,” as used in the Specification, to mean “less than
or equal to.” PO Resp. 7; Ex. 2002 ¶ 39 (“[R]eferring to transfer of data
‘within’ a bandwidth is equivalent to referring to transfer of data at a rate
less than or equal to the selected playback bandwidth.”). Petitioner and its
declarant, Dr. Borko Furht, appear to agree with Patent Owner on this point.
Pet. Reply 2; Ex. 1007 ¶ 18 (“Although the selected ‘playback bandwidth’
may be a single value, it identifies the upper limit on a range of expected
reliable delivery rates.”). Having considered the parties’ positions and
weighed the supporting evidence, we determine that the parties’ positions
are correct. Accordingly, we modify our original construction of “playback
bandwidth with which to deliver at least one of said images or sounds” to “a
rate at or less than which to deliver at least one of said images for playback.”
2. “selecting”
Patent Owner also argues that the term “selecting” requires
construction. PO Resp. 9. Patent Owner contends that the ordinary and
customary meaning of the word “select” as understood by a person of
ordinary skill in the art is “to make a choice in preference to other available
alternatives.” Id. As support, Patent Owner cites the testimony of its
declarant and a dictionary defining the term “select” as “to choose in
preference to another or others; pick out.” Id. (citing Ex. 2002 ¶ 41;
Ex. 2007).
IPR2014-00153
Patent 5,995,091
7
Petitioner disagrees with Patent Owner’s proposed construction of
“selecting,” asserting that Patent Owner’s proposal is too narrow. Pet.
Reply 3. Petitioner notes that the Specification explains that the selection of
the playback bandwidth is made upon “consideration of network and/or
playback system limitations.” Id. at 3–4 (citing Ex. 1001, 4:1–5). The
Specification, Petitioner argues, does not state that there must be multiple
playback bandwidth options from which the user can select. Id. at 4.
Petitioner also asserts that the dictionaries cited by Patent Owner define
“select” more broadly as allowing one to make a “choice,” without requiring
multiple options. Id. (citing Exs. 2007, 2008).
Upon considering the claim language and the Specification, we
determine that Patent Owner’s proposed construction of “selecting” is too
narrow. To the extent that Patent Owner argues that its proposed
construction requires a user to make a specific choice between a menu of
playback bandwidths, we do not agree that that is the broadest reasonable
interpretation in light of the Specification. In particular, nothing in the
Specification requires a user to choose specifically from a list of multiple
playback bandwidths. As support, Patent Owner asserts that an object of the
invention is to permit a user to select a playback bandwidth to generate a
“bandwidth-controlled presentation data stream, thereby controlling network
load and providing predictable performance on a variety of playback
systems.” PO Resp. 9 (quoting Ex. 1001, 2:61–67). Patent Owner also
notes that the Specification explains that the selection of the playback
bandwidth is made upon “consideration of network and/or playback system
limitations.” Id. at 10; Ex. 1001, 4:1–5. These disclosures, however, do not
require that a user identify a specific list of playback bandwidths and then
affirmatively choose one over another. Rather, this disclosure simply
IPR2014-00153
Patent 5,995,091
8
suggests that a user choose a playback bandwidth that will achieve these
goals. Moreover, we agree with Petitioner that the choice need not be
limited to choosing between specific alternative delivery rates. Pet. Reply
3–4. As Petitioner’s declarant states, the choice may be between different
ways to determine a playback bandwidth, as each may result in a different
playback bandwidth value. Ex. 1007 ¶ 24.
3. Conclusion
Thus, after considering the complete record, we modify our
construction and determine that the broadest reasonable interpretation of
“selecting a playback bandwidth with which to deliver at least one of said
images or sounds” is “choosing a rate at or less than which to deliver at least
one of said images or sounds for playback.”
B. Principles of Law
To prevail in its challenges to the patentability of the claims,
Petitioner must prove unpatentability by a preponderance of the evidence.
35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). To establish anticipation, each
limitation in a claim must be found in a single prior art reference, arranged
as recited in the claim. Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359,
1369 (Fed. Cir. 2008). While the limitations must be arranged or combined
in the same way as in the claim, identity of terminology is not required. In
re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009); In re Bond, 910 F.2d 831,
832 (Fed. Cir. 1990). Moreover, a reference anticipates a claim “if it
discloses the claimed invention such that a skilled artisan could take its
teachings in combination with his own knowledge of the particular art and
be in possession of the invention.” In re Graves, 69 F.3d 1147, 1152 (Fed.
Cir. 1995). Thus, “it is proper to take into account not only specific
teachings of the reference but also the inferences which one skilled in the art
IPR2014-00153
Patent 5,995,091
9
would reasonably be expected to draw therefrom.” In re Preda, 401 F.2d
825, 826 (CCPA 1968).
We analyze the instituted ground of unpatentability in accordance
with the above-stated principles.
C. Anticipation of Claims 1, 4, and 8 by Cruz (Ex. 1003)
Petitioner contends that Cruz anticipates claims 1, 4, and 8. Pet. 28–
32, 36–38. Petitioner relies on the Declaration (Ex. 1005) and Reply
Declaration (Ex. 1007) of Dr. Borko Furht. Patent Owner disagrees with
Petitioner’s assertions (PO Resp. 11–18), relying on the Declaration of
Dr. Kevin C. Almeroth (Ex. 2002).
1. Cruz
Cruz relates to preprocessing and delivering multimedia presentations.
Ex. 1003, 1:26–27. The Cruz system includes a multimedia preprocessor, a
mass storage, a delivery processor, a distribution network, and a plurality of
presentation processors. Id. at 8:2–6. The preprocessor receives an original
media presentation (“OMP”), which includes multimedia objects and
associated presentation commands “for presenting the multimedia objects to
a customer based upon the customer’s interactive commands.” Id. at 8:6–9.
The preprocessor also receives inputs called “presentation technology
parameters (“PTPs”),” which indicate “key information characterizing
components” of the delivery system. Id. at 8:10–14. The PTPs, which can
be inputted manually from a human interface, include the bit rate of
distribution network. Id. at 8:20–21; 9:26–27. Based upon the PTPs, the
preprocessor generates a preprocessed multimedia presentation (“PMP”),
which includes a delivery schedule for delivering the PMP. Id. at 7:40–45.
A mass storage stores PMPs available for delivery on customer
request. Id. at 8:29–32. Upon receiving a request from a customer for a
IPR2014-00153
Patent 5,995,091
10
multimedia presentation, the delivery processor retrieves the requested PMP
from mass storage. Id. at 8:36–39. The delivery processor executes the
delivery schedule embedded in the PMP and delivers the multimedia objects
and the presentation commands to the presentation processor of the
requesting customer. Id. at 8:39–43. The presentation processor then
presents the multimedia objects to the customer according to the
presentation commands. Id. at 8:43–45.
2. Analysis
a. Claims 1 and 4
Petitioner contends that Cruz anticipates claims 1 and 4. Pet. 27–32.
We have reviewed Petitioner’s detailed explanation identifying where each
limitation allegedly appears in Cruz, along with the testimony of Petitioner’s
declarant, Dr. Furht. See id.; Ex. 1005 ¶¶ 129–139. We also have reviewed
Patent Owner’s assertions and evidence as to why Petitioner’s explanations
and evidence are deficient. PO Resp. 11–18; Ex. 2002 ¶¶ 43–55. On this
record, we are persuaded that Petitioner has shown by a preponderance of
the evidence that Cruz discloses each limitation of claims 1 and 4.
For example, claim 1 requires generating a list specifying data
elements representing images and sounds and playback times. Petitioner
asserts that Cruz discloses using an OMP, which includes a list of
multimedia objects (such as images and sounds) and associated presentation
times for presenting the images and sounds. Pet. 28–29 (citing Ex. 1003,
1:31–33, 7:39–50, 8:6–10, 9:58–63, Fig. 1B). Petitioner also asserts that
Cruz discloses that the OMP can be generated using “any well-known
multimedia authoring system.” Id. at 29 (citing Ex. 1003, 8:67–9:10).
Claim 1 further requires selecting a playback bandwidth with which to
deliver the images and sounds. Petitioner asserts that Cruz discloses
IPR2014-00153
Patent 5,995,091
11
selecting a playback bandwidth, as a user can input manually the “bit rate of
distribution network” as one of the PTPs. Id. at 29–30 (citing Ex. 1003,
8:10–22, 9:27–28, 14:48–52, 19:4–9).
Claim 1 further requires identifying from the list the data elements
and the times for playback of the images and sounds. Petitioner asserts that
Cruz discloses generating a delivery schedule listing the multimedia objects
and presentation times included in the OMP. Id. at 30 (citing Ex. 1003,
10:9–21, 14:40–18:55); see also Ex. 1003, 19:4–14, Fig. 6A.
Claim 1 also requires dividing each of the data elements into one or
more data portions. Petitioner asserts that Cruz discloses that its
presentation scheduler may repackage an object into smaller objects for
delivery if the presentation scheduler finds that the object cannot be
accommodated in its entirety by the presentation processor before the
presentation time. Pet. 30–31 (citing Ex. 1003, 11:40–48).
Finally, claim 1 requires combining the data portions in a multimedia
presentation data stream for delivery to a computer within the selected
bandwidth. Petitioner asserts that Cruz discloses that, based on the OMP
and PTPs, the presentation scheduler creates a PMP, which includes a
delivery schedule so that each object in the presentation and its associated
commands arrive at the customer’s presentation processor no later than its
designated presentation time. Id. at 31–32 (citing Ex. 1003, 6:37–44, 9:58–
10:21, 14:14–24, 19:17–20:35).
Claim 4 depends from claim 1 and further requires the step of
accessing the multimedia presentation data stream to reproduce the images
and sounds at the specified times. Petitioner asserts that Cruz discloses that
the presentation processor receives and processes objects and presentation
commands delivered to it from the delivery processor, ensuring that the
IPR2014-00153
Patent 5,995,091
12
presentation commands are executed and the objects are presented at their
specified times. Id. at 32 (citing Ex. 1003, 14:14–31).
In response, Patent Owner contends that Cruz does not disclose the
steps of “selecting a playback bandwidth with which to deliver at least one
of said images or sounds” or “dividing each of said data elements into one or
more portions.” PO Resp. 11–18. We address each of Patent Owner’s
arguments in turn.
i. “selecting a playback bandwidth with which to deliver
at least one of said images or sounds”
Patent Owner argues that Cruz does not disclose the “selecting a
playback bandwidth” step because the minimum bit rate described is a fixed
characteristic of a given network and, therefore, is not “selected.” PO
Resp. 11. According to Patent Owner, when a user enters the fixed
minimum bit rate of the distribution network, the user is not choosing a
particular bit rate over other bit rates for delivery. Id. at 12; Ex. 2002 ¶¶ 46–
48.
We are not persuaded. As explained above, “selecting a playback
bandwidth” is not limited to choosing between specific alternative bit rates.
Rather, “selecting a playback bandwidth” may encompass a choice between
different ways to determine the playback bandwidth. Cruz discloses that the
minimum bit rate can be inputted manually by the user. Ex. 1003, 9:27–28.
In doing so, we agree with Petitioner that a user chooses a playback
bandwidth by determining what the minimum bit rate is. The testimony of
both parties’ declarants supports this finding. Petitioner’s declarant, Dr.
Furht, testified that there are several different ways that a person of ordinary
skill in the art may select a playback bandwidth. Ex. 1007 ¶¶ 23–24.
Although Patent Owner’s declarant, Dr. Almeroth, testified that he was not
IPR2014-00153
Patent 5,995,091
13
aware of a good way to identify what the minimum bit rate of the
distribution network would be, he conceded that, if required to do so, one
might “just pick some arbitrary value.” Ex. 1008, 117:12–118:6. Thus, we
are persuaded that Cruz’s disclosure of inputting the minimum bit rate
discloses “selecting a playback bandwidth,” as claimed.
Patent Owner also argues that the minimum bit rate is not a rate at
which the particular presentation is delivered. PO Resp. 14. According to
Patent Owner, Cruz does not describe a situation where the value of the
delivery rate is equal to the minimum bit rate of the network. Id. at 15; Ex.
2002 ¶¶ 49–53. As Petitioner and Patent Owner’s declarants note, however,
the claim does not require actual transmission, and, therefore, the playback
bandwidth does not have to be the actual delivery rate. Ex. 1007 (Furht
Reply Decl.) ¶¶ 16–17; Ex. 1008 (Almeroth Dep.), 33:8–12 (“Since Claim 1
doesn’t specifically require actually doing the transmission, if the
transmission ends up not actually occurring at that playback bandwidth, it
may or may not meet the claim.”). Moreover, Cruz contemplates delivering
a multimedia presentation at the selected minimum network bit rate, as
required by claim 1. Ex. 1003, 19:4–14; Fig. 6A (showing a delivery
schedule of a multimedia presentation that has been optimized for delivery
over a distribution network operating at a minimum network bit rate). Thus,
we are not persuaded by Patent Owner’s argument.
ii. “dividing each of said data elements into one or more portions”
Patent Owner argues that the repackaging process of Cruz does not
disclose dividing each of the data elements into one or more portions. PO
Resp. 16; Ex. 2002 ¶¶ 54–55. Specifically, Patent Owner argues that, in
Cruz, for an object to be divided in the repackaging process, (1) the object
and its commands cannot be accommodated in their entirety by the
IPR2014-00153
Patent 5,995,091
14
presentation processor before the presentation time; and (2) there must be
some available memory at the presentation processor. PO Resp. 16 (citing
Ex. 1003, 11:41–45). Patent Owner argues that, because Cruz never states
that both of these conditions are fulfilled for all of the elements of the OMP,
Cruz does not disclose expressly the “dividing” step of the claim. Id. at 16–
17. Patent Owner further argues that Cruz does not disclose inherently the
“dividing” step, because it is possible that some elements do not meet both
requirements and, therefore, would not be divided. Id. at 17.
We do not find Patent Owner’s arguments persuasive. Claim 1 recites
“dividing each of said data elements into one or more portions.” Thus,
contrary to Patent Owner’s assertion, by encompassing “dividing each of
said data elements into one . . . portion[],” the claim does not require
dividing each data element into multiple portions. Although Cruz does not
necessarily repackage every object into multiple smaller objects, it is not
required to do so to anticipate the claims.
As Petitioner notes, our position is consistent with the Specification of
the ’091 patent. Pet. Reply 13–14. The Specification states that compressed
data is “apportioned into utilizable portions, which can be generally uniform
in size, but which are not subject to any particular size constraints other than
such upper limits which are determined by the bandwidth limitations of the
network and playback systems.” Ex. 1001, 9:30–35. We credit the
testimony of Petitioner’s expert, who explains that this passage of the
Specification is similar to the disclosure of Cruz. Ex. 1007 ¶ 40. That is,
both the ’091 patent and Cruz describe that, after considering the upper
limits of the playback system, if the data has a utilizable size, then the data
need not be divided into multiple portions. Id.
IPR2014-00153
Patent 5,995,091
15
After considering the arguments and evidence presented by Petitioner
and Patent Owner, we determine that Petitioner has shown by a
preponderance of the evidence that Cruz anticipates claims 1 and 4 of the
’091 patent.
b. Claim 8
Petitioner provides a detailed explanation as to how Cruz discloses
each limitation of claim 8. Pet. 36–38. Patent Owner does not address
claim 8 in its Patent Owner Response and, accordingly, “leave[s] it to the
Board’s discretion to decide Claim 8 based on the petition.” Tr. at 24:19–
25. Upon review of Petitioner’s analysis and supporting evidence, we
determine that Petitioner has demonstrated, by a preponderance of the
evidence, that claim 8 is anticipated by Cruz.
For example, claim 8 requires a method for reproducing a multimedia
presentation from a playback data stream containing images and sounds and
associated commands. Petitioner asserts that Cruz discloses a system for
“preprocessing and delivering multimedia presentations to customers” where
the multimedia presentation is made up of multimedia objects and
presentation commands. Pet. 36–37 (citing Ex. 1003, 1:31–33, 7:39–45,
9:58–10:21).
Claim 8 further requires identifying the data portions. Petitioner
asserts that Cruz discloses that “[t]he basic function of the presentation
processor is to receive and process objects and presentation commands sent
by the delivery processor as a result of executing delivery commands and to
present the objects to the customer as instructed in the presentation
commands.” Id. at 37 (citing Ex. 1003, 14:14–18). Petitioner notes that to
process the objects and their presentation commands, the presentation
processor identifies those objects and commands. Id.; Ex. 1005 ¶ 152.
IPR2014-00153
Patent 5,995,091
16
Claim 8 also requires extracting images and sounds from the data
portions and extracting the associated commands. Petitioner asserts that
Cruz discloses that the presentation processor stores objects in an object
store and commands in a command store. Pet. 37–38 (citing Ex. 1003, 14:5–
8, Fig. 5). As such, Petitioner contends that the presentation processor must
extract multimedia objects from the data stream and separate them from
other objects that are extracted, such as presentation commands, to place
them in their respective stores. Id.; Ex. 1005 ¶¶ 153–154.
Finally, claim 8 requires processing the data portions in accordance
with the associated commands to reproduce the images and sounds.
Petitioner asserts that Cruz discloses that the presentation processor receives
and processes objects and presentation commands sent by the delivery
processor to present the objects to the customer as instructed in the
presentation commands. Id. at 38 (citing Ex. 1003, 14:14–18; 8:43–45).
We are persuaded by Petitioner’s reasoning. After considering the
arguments and evidence, we determine that Petitioner has shown by a
preponderance of the evidence that Cruz discloses each limitation of claim 8
of the ’091 patent.
CONCLUSION III.
We conclude that Petitioner has shown by a preponderance of the
evidence that claims 1, 4, and 8 are unpatentable under 35 U.S.C. § 102(e).

IPR2014-00153
Patent 5,995,091
17
ORDER IV.
In consideration of the foregoing, it is hereby:
ORDERED that that Petitioner has shown by a preponderance of the
evidence that claims 1, 4, and 8 are unpatentable;
FURTHER ORDERED that, because this is a Final Written Decision,
parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

IPR2014-00153
Patent 5,995,091
18

FOR PETITONER:

Christopher L. Kelley
James F. Valentine
PERKINS COIE LLP
CKelley@perkinscoie.com
JValentine@perkinscoie.com

PATENT OWNER:

Robert Greene Sterne
STERNE, KESSLER, GOLDSTEIN & FOX PLLC
Lori A. Gordon
rsterne-PTAB@skgf.com
lgordon-PTAB@skgf.com