Andra Group, LP

Patent Trials and Appeals Board

Oct 22, 2020

IPR2020-00853 (P.T.A.B. Oct. 22, 2020)

Trials@uspto.gov Paper 12
571-272-7822 Date: October 22, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________

VICTORIA’S SECRET STORES LLC,
Petitioner,

v.

ANDRA GROUP, LP,
Patent Owner.
_______________

IPR2020-00853
Patent 8,078,498 B2
_______________

Before LINDA E. HORNER, JAMES A. WORTH, and ERIC C. JESCHKE,
Administrative Patent Judges.

JESCHKE, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 314
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I. BACKGROUND
Victoria’s Secret Stores, LLC (“Petitioner”) filed a Petition to institute
an inter partes review of claims 1, 2, 5–8, and 11 (the “challenged claims”)
of U.S. Patent No. 8,078,498 B2 (Ex. 1001, “the ’498 patent”). Paper 1
(“Pet.”). Andra Group, LP (“Patent Owner”) filed a Patent Owner’s
Preliminary Response. Paper 10 (“Prelim. Resp.”).
We have authority to determine whether to institute an inter partes
review. See 35 U.S.C. § 314 (2018); 37 C.F.R. § 42.4(a) (2019).
Section 314(a) of Title 35 of the United States Code provides that an inter
partes review may not be instituted “unless . . . the information presented in
the petition . . . shows that there is a reasonable likelihood that the petitioner
would prevail with respect to at least 1 of the claims challenged in the
petition.” Upon consideration of the evidence and arguments in the Petition
(including its supporting testimonial evidence) as well as the evidence and
arguments in the Preliminary Response, for the reasons below, we determine
that the Petition does not show a reasonable likelihood that Petitioner would
prevail with respect to at least one of the challenged claims. We thus deny
institution of inter partes review.
A. Related Proceeding
The parties identify a prior proceeding in the U.S. District Court for
the Eastern District of Texas (“the Texas District Court”) involving the ’498
patent: Andra Group, LP v. Victoria’s Secret Stores, LLC, No. 4:19-cv-
00288-ALM-KPJ (E.D. Tex.), filed April 17, 2019. Pet. 2; Paper 8 (Patent
Owner’s Mandatory Notices) § 2. The Texas District Court dismissed that
proceeding without prejudice. See Prelim. Resp. 6.
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B. The ’498 Patent
The ’498 patent “relates to electronic commerce and, in particular, to
a virtual showroom system and method.” Ex. 1001, 1:15–16. According to
the ’498 patent, at the time of the invention, “[m]any buyers remain[ed]
cautious . . . and avoid[ed] on-line purchases involving tangible, personal
products[,] which traditionally require a more thorough, in-person
inspection,” because “[e]xisting technology d[id] not provide a buyer with
sufficient opportunity to adequately evaluate such items prior to purchase.”
Id. at 1:28–33. One stated object of the invention is to “provide a virtual
showroom which allows a user to more thoroughly evaluate articles and
products for potential purchase.” Id. at 1:37–41.
Figure 2 is reproduced below:

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Figure 2 is “a schematic drawing illustrating a virtual showroom.”
Ex. 1001, 2:31–33. Depicted web-based virtual showroom 60 contains
product information and electronic images of various articles of clothing.
See id. at 3:47–50. In this embodiment, display field 66 provides electronic
images of undergarments 68, 70, 72, and 74, with associated product
descriptions 69, 71, 73, and 75. Id. at 4:18–21. “A user may select one of
undergarments 68, 70, 72 and 74, for display within master display field 62
by ‘clicking on’ the graphical object, or icon which represent any of
undergarments 68, 70, 72 and 74.” Id. at 4:25–28.1 The selected
undergarment then becomes “the featured undergarment, and a larger
electronic image of the featured undergarment is displayed within master
display field 62.” Id. at 4:28–32. According to the ’498 patent, the larger
image enables a user “to more thoroughly evaluate the featured
undergarment.” Id. at 4:37–38.

1 Throughout this Decision, we omit any bolding of reference numerals
and claim numbers in quotations from the ’498 patent and prior art
references, and also omit any italicization of prior art reference names in
quotations from the briefs.
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Figures 2A and 2B are reproduced below:

Figure 2A is “a schematic drawing illustrating a display field
containing graphical objects” and Figure 2B is “a schematic drawing
illustrating an alternative embodiment display field.” Ex. 1001, 2:34–36.
These two figures show different embodiments of a “distinctive
characteristic” to identify selected undergarment 68 within display field 66
(as shown in Figure 2). See id. at 4:53–5:16. For example, the embodiment
shown in Figure 2A uses “shading” to distinguish selected undergarment 68
from non-selected undergarments 70, 72, and 74. See id. at 5:2–4. In the
embodiment shown in Figure 2B, selected undergarment 68 is shown larger
than non-selected undergarments 70, 72, and 74. See id. at 5:7–10.
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Figure 3 is reproduced below:

Figure 3 is “a schematic drawing illustrating an alternative
embodiment of the virtual showroom” in Figure 2. Ex. 1001, 2:38–39. In
the embodiment shown in Figure 3, field 78 includes electronic thumbnail
images 80, 82, and 84, with each thumbnail image “representing a different
view of the same article.” Id. at 5:31–34. Discussing Figures 2 and 3
together, the ’498 patent describes one possible user experience:
In a particular embodiment, when an article is selected
from field 66 to be displayed in master display field 62, a default
command may cause a front view of the selected article to be
displayed within master display field 62. A user may then view
various other views of the same article by clicking upon
thumbnail images 80, 82 and 84 in order to gain a more thorough
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perspective of the product. In practice, a user may select
electronic thumbnail image 82 which portrays a rear view of a
particular product, and the rear view of that product will be
displayed within master display field 62.
Id. at 5:45–54; see also id. at 6:1–21 (also describing a possible user
experience). After a particular view is selected, that thumbnail image—such
as thumbnail image 80 in Figure 3—can include a “distinctive
characteristic” to indicate selection. See id. at 5:54–67.
C. Challenged Claims
Petitioner challenges claims 1, 2, 5–8, and 11, of which claims 1, 7,
and 11 are independent. Claims 2, 5, and 6 depend from claim 1, and claim
8 depends from claim 7. The independent claims are reproduced below,
with bracketed letters added to identify each clause:
1. A method of displaying an article within a
virtual showroom associated with a network server,
comprising:
[A] providing, by a processor, a plurality of
thumbnail images of said article, [B] each image
comprising an icon and representing a respective
perspective view of said article, [C] allowing a user
of said network server to select one of said plurality
of thumbnail images for display in a master display
field [D] wherein each respective perspective view
represents a different perspective view of the same
said article, [E] each respective perspective view
being selected from the group consisting of front,
rear, side, and isometric views;
[G] providing a distinctive characteristic to
said one of said plurality of thumbnail images
selected by said user; and
[I] displaying said selected one of said
plurality of thumbnail images in said master display
field.
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Ex. 1001, 11:27–42.2
7. A method of displaying a plurality of articles
within a virtual showroom associated with a
network server, comprising:
[A] providing, by a processor, a plurality of
thumbnail images, [B] each thumbnail image
comprising an icon and corresponding to one of said
plurality of articles, [C] allowing a user of said
network server to select one of said plurality of
thumbnail images for display within a master
display field [D] wherein each respective
perspective view represents a different perspective
view of the same said article, [E] each respective
perspective view being selected from the group
consisting of front, rear, side, and isometric views;
[G] providing a distinctive characteristic to
said one of said plurality of thumbnail images
selected by said user; and
[I] displaying said selected one of said
plurality of thumbnail images in said master display
field.
Ex. 1001, 12:9–25.
11. A method of displaying an article within a
virtual showroom associated with a network server,
comprising:
[A] providing, by a processor, a first
thumbnail image [B] representing a first perspective
view of an article, [D] wherein the first perspective
view is selected from the group consisting of front,
rear, side, and isometric views;
[F.i] providing, by the processor, a second
thumbnail image comprising an icon and

2 We adopt Petitioner’s designations for the clauses of the challenged
claims. See Pet. 26–29.
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representing a second perspective view of the same
article, wherein the second perspective view is from
a different perspective than the first perspective
view and [F.ii] is selected from the group consisting
of front, rear, side, and isometric views;
[H] providing an interface operable to allow
a user of a network to select one of the first or
second thumbnail images for display in a master
field; and
[I] displaying the selected one of the first or
second thumbnail images in the master display field
in response to the user’s selection.
Ex. 1001, 12:38–55.
D. Asserted Grounds of Unpatentability
Petitioner challenges claims 1, 2, 5–8, and 11 of the ’498 patent on the
following grounds:
Claim(s) Challenged 35 U.S.C. § Reference(s)/Basis
1, 2, 5–8, 11 103(a) VS Webpages3
1, 2, 5–8, 11 103(a) Rao,4 Vertex5

3 Declaration of Christopher Butler (Office Manager at the Internet
Archive), dated April 23, 2020, and attached printouts of archived webpages
from www.victoriassecret.com (Ex. 1031, “VS Webpages”).
4 Ramana Rao et al., The Information Grid: A Framework for
Information Retrieval and Retrieval-Centered Applications, UIST ’92:
Proceedings of the 5th Annual ACM Symposium on User Interface Software
and Technology 23 (1992) (Ex. 1034, “Rao”).
5 Business Wire, Inc., The Vertex Opens Virtual Doors as VRML
Forum; VRML 2.0 Users Exchange Ideas and Original Models Online (Oct.
24, 1996) (Ex. 1038, “Vertex).
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Claim(s) Challenged 35 U.S.C. § Reference(s)/Basis
1, 2, 5–8, 11 103(a) Smith,6 Salas7
Petitioner supports its challenge with a declaration from Mr. Glenn
Weadock (Ex. 1003, “Weadock Decl.”).
II. DISCUSSION
A. The Level of Ordinary Skill in the Art
The level of ordinary skill in the art is “a prism or lens” through which
we view the prior art and the claimed invention. Okajima v. Bourdeau, 261
F.3d 1350, 1355 (Fed. Cir. 2001). The person of ordinary skill in the art is a
hypothetical person presumed to have known the relevant art at the time of
the invention. In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995). In
determining the level of ordinary skill in the art, we may consider certain
factors, including the “type of problems encountered in the art; prior art
solutions to those problems; rapidity with which innovations are made;
sophistication of the technology; and educational level of active workers in
the field.” Id. (internal quotation marks and citation omitted).
Petitioner contends that one of ordinary skill in the art at the time of
the invention would have had either “(1) a Bachelor’s degree in Computer
Science or other engineering or technical field, with at least two years of
experience in World Wide Web design, as well as at least a passing

6 International Publication No. WO 98/55949, published December 10,
1998 (Ex. 1039, “Smith”).
7 International Publication No. WO 99/61977, published December 2,
1999 (Ex. 1040, “Salas”).
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understanding of photography, drafting, and/or graphic design, or
(2) equivalent experience.” Pet. 31 (citing Weadock Decl. ¶¶ 19–23).
Patent Owner does not offer an alternative definition of the level of
ordinary skill in the art, but disagrees with Petitioner’s alternative definitions
for various reasons. See Prelim. Resp. 7–10. For example, Patent Owner
argues that Petitioner “fails to provide relational thresholds comparing the
alleged ‘equivalent experience’ to any of the educational, web-design, or
‘passing understanding’ aspects of the proposed definition” and that
“Petitioner’s ambiguous requirement directed to a so-called ‘passing
understanding’ fails to articulate a meaningful threshold.” Prelim. Resp. 7.
For the reasons asserted by Patent Owner, we agree as to the
ambiguous nature of (1) the “passing understanding” requirement in the first
alternative definition proposed and (2) the “equivalent experience”
requirement in the second alternative definition. See Prelim. Resp. 7.
Further undermining Petitioner’s first alternative definition, as noted by
Patent Owner, Petitioner’s declarant, Mr. Weadock, does not include the
“passing understanding” requirement in his definition of the level of
ordinary skill in the art. See Weadock Decl. ¶ 20, cited at Pet. 31.
For these reasons, we adopt the definition of the level of ordinary skill
in the art proposed by Petitioner with the ambiguous aspects removed. For
purposes of this Decision only, one of ordinary skill in the art at the time of
the invention in the ’498 patent would have had a Bachelor’s degree in
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Computer Science or another engineering or technical field, with at least two
years of experience in World Wide Web design.8
B. Claim Construction
In inter partes reviews, the Board interprets claim language using the
district-court-type standard, as described in Phillips v. AWH Corp., 415 F.3d
1303 (Fed. Cir. 2005) (en banc). See 37 C.F.R. § 42.100(b). Under that
standard, we generally give claim terms their ordinary and customary
meaning, as would be understood by a person of ordinary skill in the art at
the time of the invention, in light of the language of the claims, the
specification, and the prosecution history. See Phillips, 415 F.3d at 1313–
14. Although extrinsic evidence, when available, may also be useful when
construing claim terms under this standard, extrinsic evidence should be
considered in the context of the intrinsic evidence. See id. at 1317–19.
Petitioner proposes constructions for several claim terms:
(1) “perspective view”; (2) “front,” “side,” and “rear” views; (3) “isometric”
view; (4) “thumbnail image[s]”; (5) “master display field”; (6) “icon”; (7) “a
distinctive characteristic [to said one of said plurality of thumbnail images]”;
and (8) “article.” Pet. 32–40. Patent Owner responds by addressing those
claim terms. Prelim. Resp. 10–25. We do not discern a need to construe
explicitly any of the claim language discussed in this section or any other
claim terms because doing so would have no effect on the analysis below.
See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d

8 Although we do not adopt Petitioner’s definition in its entirety, we
decline Patent Owner’s invitation to deny the Petition on this basis alone.
See Prelim. Resp. 9. Rather, because we adopt Petitioner’s expert’s
definition and the Petition relies on this testimony throughout, we examine
the merits of the Petition.
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1013, 1017 (Fed. Cir. 2017) (stating that “we need only construe terms ‘that
are in controversy, and only to the extent necessary to resolve the
controversy’”) (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200
F.3d 795, 803 (Fed. Cir. 1999)).
C. Asserted Obviousness of Claims 1, 2, 5–8, and 11 Based on VS
Webpages
Petitioner asserts that claims 1, 2, 5–8, and 11 of the ’498 patent are
unpatentable under 35 U.S.C. § 103(a) based on VS Webpages. Pet. 40, 51–
67. Patent Owner provides arguments addressing this asserted ground.
Prelim. Resp. 27–36. We first summarize aspects of VS Webpages.
1. VS Webpages
VS Webpages includes two printouts of the Internet Archive’s records
of portions of Petitioner’s own webpages as of the end of November 1999.
See Ex. 1031, at 1 (Declaration of Office Manager at the Internet Archive
describing the format of Exhibit A), 3–4. The upper portion of one of the
two printouts is reproduced below:

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This printout—which we will refer to as Printout A—depicts the
Internet Archive interface showing aspects of www.victoriasecret.com as of
November 27, 1999. Ex. 1031, at 3. More specifically, Printout A shows a
3-by-3 grid of 9 different images of female models off to the right, with the
bottom, middle image in color and the rest in black and white. Id.
Underneath the grid, Printout A provides: “Here, a selection of exclusive
images from the Desire™ photo shoot . . . . Simply ‘click’ on an image
above for a larger view.” Id. Off to the left is a larger version of the image
in color in the bottom, middle of the grid. See id.; see also Ex. 1032 (video
showing operation of the webpages shown in Exhibit 1031).
The upper portion of the other printout is reproduced below:

This printout—which we will refer to as Printout B—depicts the
Internet Archive interface showing aspects of www.victoriasecret.com as of
November 28, 1999. Ex. 1031, at 4. More specifically, Printout B shows a
3-by-3 grid of 9 different images of female models off to the right, similar to
Printout A, but with the upper, right image in color and the rest in black and
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white. Id. Off to the left is a large area similar to that in Printout A, but
Printout B has a broken image icon rather than an image. Id.
2. Analysis
a. Independent Claims 1, 7, and 11
For independent claims 1, 7, and 11, Petitioner contends that VS
Webpages, as modified, satisfies each of the limitations. Pet. 52–63. Patent
Owner asserts (among other arguments) that VS Webpages, as modified,
does not satisfy the requirement, in each independent claim, of providing
thumbnail images of an “article.” See Prelim. Resp. 30–32. For the reasons
below, we determine that the Petition does not show a reasonable likelihood
that Petitioner would prevail with respect to the contention that claims 1, 7,
and 11 would have been obvious based on VS Webpages.
Clause A of each of the three independent claims (when considered in
light of each claim’s respective preamble) requires providing at least one
thumbnail image of an “article.” Ex. 1001, 11:27–30 (claim 1), 12:9–12
(claim 7), 12:38–40 (claim 11). As to this requirement, Petitioner highlights
the 3-by-3 grid off to the right of Printout A in VS Webpages and states: “In
each of the thumbnails, the models displayed are the ‘articles’ as claimed by
the ‘498 Patent.” Pet. 52–53; see also id. at 52 (addressing the preambles
and stating: “The VS Webpages are . . . designed to show one or more
models (‘articles’) to a user . . . .”).9

9 Even in the context of the alternative reliance on other prior art (such
as Vertex) for this asserted ground, to modify VS Webpages with “different
views of a single article” (Pet. 58), Petitioner continues to rely on human
beings as the “article[s].” See Pet. 58–59 (discussing the alternative reliance
on Vertex as to clause D), 60 (discussing clause E).
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Patent Owner argues that “Petitioner errs in mapping a female model
onto the claimed ‘article.’” Prelim. Resp. 30. We agree. As argued by
Patent Owner, the record does not support Petitioner’s position that the
scope of the term “article” (or “articles” in parts of claim 7) includes human
beings. See id. at 30–32. As an initial matter, as noted by Patent Owner,
Petitioner does not explain why a human being allegedly falls within the
scope of the term “article.” See Prelim. Resp. 31 (“There simply is no
argument or evidence set forth in the Petition to support the interpretation
that the ‘article’ term recited in claim 1 encompasses a person.”). And
although Petitioner notes the parties’ agreement, in the Texas District Court,
that “article” means “item” (see Pet. 40), Petitioner does not explain why a
human being allegedly falls within the scope of the term “item.”
Petitioner does not identify any aspect of the claim language itself that
supports Petitioner’s position as to the scope of the term “article.” And, as
argued by Patent Owner, the Specification strongly supports the contrary
view. See Prelim. Resp. 30–31. The Specification consistently frames an
“article” as an inanimate object that is, for example, “offered for purchase”
and has a “price” as well as a “manufacturer” and “supplier.” See, e.g.,
Ex. 1001, 1:48–52 (describing the “present invention” as “a network server
with enhanced graphics and improved methods for displaying articles
offered for purchase, to allow a purchaser to fully evaluate the article while
shopping ‘on-line’” (emphasis added)), 4:10–11 (discussing the “price of the
articles or products”), 6:28–29 (discussing “an analysis of a particular article
from the manufacturer, supplier, network operator and/or any other clothing
professional”), 6:41–42 (discussing “[i]nformation regarding the
manufacturer of a particular article”), 8:49–52 (discussing how, “each time a
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user purchases a particular article, the user’s information and profile of the
particular article may be stored within a database” (emphasis added)), 9:1–5
(discussing the possibility of “receiving notification from the manufacturer
and/or supplier, that a particular article will be discontinued or unavailable
in the future”).
Further, as argued by Patent Owner, the Specification frequently uses
“article” and “product” interchangeably. See, e.g., Ex. 1001, 5:45–51
(discussing how “[a] user may then view various other views of the same
article by clicking upon thumbnail images 80, 82 and 84 in order to gain a
more thorough perspective of the product” (emphasis added)), cited at
Prelim. Resp. 30; see also Ex. 1001, 11:3–8 (“The articles and products
described within this specification have been primarily limited to
undergarments and complementary articles, such as outer garments. It will
be recognized by those of ordinary skill in the art that any product or article
may be displayed within master display field 62, within the teachings of the
present invention.” (emphasis added)), 1:37–41 (discussing “provid[ing] a
virtual showroom which allows a user to more thoroughly evaluate articles
and products for potential purchase” (emphasis added)), 3:47–50 (discussing
“virtual showroom 60 containing product information and electronic images
of these various articles” (emphasis added)). In line with this understanding,
the Specification groups “articles” with “products, . . . , garments,
undergarments, outer wear and other tangible items” that could be
“contained within web pages and, more specifically, a virtual showroom.”
Id. at 3:52–55 (emphasis added); see also ClearCorrect Operating, LLC v.
Int’l Trade Comm’n, 810 F.3d 1283, 1290 (Fed. Cir. 2015) (defining the
term “articles” as used in 19 U.S.C. § 1337(a) in the context of ITC
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proceedings as “material things,” which did not include “electronic
transmission of digital data”).
In addition, as argued by Patent Owner, the Specification expressly
distinguishes between depictions of an “article” and a human being:
In another embodiment, an actual photograph or other depiction
of a human may be used within display field 62, to illustrate a
partic[ular] article (i.e., undergarment 68).
Ex. 1001, 4:49–52, cited at Prelim. Resp. 31; see also Ex. 1001, 11:11–14
(discussing displaying a “suitable depiction of an article being worn by a
human”). For these reasons, we determine that the record does not support
Petitioner’s position that the scope of the term “article” includes human
beings. Accordingly, based on the current record, we determine that the
Petition does not show a reasonable likelihood that Petitioner would prevail
with respect to the contention that independent claims 1, 7, and 11 would
have been obvious based on VS Webpages.
b. Claims 2, 5, 6, and 8
Claims 2, 5, and 6 depend from claim 1, and claim 8 depends from
claim 7. This asserted ground as to claims 2, 5, 6, and 8 includes the same
deficiency discussed in the prior section addressing independent claims 1, 7,
and 11 (see supra § II.C.2.a). See Pet. 63–65. Thus, we determine that the
Petition does not show a reasonable likelihood that Petitioner would prevail
with respect to the contention that claims 2, 5, 6, and 8 would have been
obvious based on VS Webpages.
D. Asserted Obviousness of Claims 1, 2, 5–8, and 11 Based on Rao
and Vertex
Petitioner asserts that claims 1, 2, 5–8, and 11 of the ’498 patent are
unpatentable under 35 U.S.C. § 103(a) based on Rao and Vertex. Pet. 40–
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41, 67–80. Patent Owner provides arguments addressing this asserted
ground. Prelim. Resp. 36–44. We first summarize aspects of Rao and
Vertex.
1. Rao
Rao discloses a system known as “[t]he Information Grid (InfoGrid)”
to be used as a “framework for building information access applications that
provides a user interface design and an interaction model.” Ex. 1034, at 1.10
According to Rao, using the InfoGrid framework, the authors built a number
of applications, including a system to manage documents in a shared
database, a browser for a database of lab members, an encyclopedia browser,
and a personal/workgroup electronic file cabinet. See id.
Figures 2 and 3 of Rao are reproduced below:

Figures 2 and 3 depict a generalized schematic and a specific
example, respectively, of the overall screen design of the system. Ex. 1034,
at 2. In both Figures, the upper left portion of the screen includes an area for

10 We cite to the page numbering added by Petitioner prior to filing
rather than the native page numbering in Rao. The same will apply to
citations for any other documents (such as Smith and Salas) with both native
and Petitioner-added sets of page numbers.
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a user to input search parameters to identify desired documents. Id.
(disclosing a “search parameters area containing a property sheet that the
user fills in to specify desired documents”). The middle left portion of the
screen includes an area to display thumbnails of all documents responding to
the input search parameters. Id. (disclosing “a browser area where the
system displays a visualization of the documents that matched the query”).
The right side of the screen includes an area to display larger versions of a
document selected from the thumbnails area. Id. (“Individual documents
can be viewed in the document area, which contains an image or textual
view of the document’s content and a property sheet view of its
description.”).
Figure 5 is reproduced below:

Figure 5 depicts an application of the InfoGrid framework that allows
retrieval of pictures and biographies of the authors’ research lab. Ex. 1034,
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at 6. Building on the example shown in Figure 3, Rao discloses that, in the
Figure 5 embodiment, “[e]ach person is treated as a document that can be
retrieved by matching against name, research area, and/or words from their
textual biography.” Id. “Small greyscale pictures are used as thumbnails”
whereas “[t]he document area displayed a large picture of [a selected] person
as well as their biography.” Id.
2. Vertex
Vertex is a document appearing to announce the launch of a website
known as “Vertex,” which is “dedicated to Virtual Reality Modeling
Language (VRML) 2.0 information and model exchange.” Ex. 1038.
Vertex discloses: “The Vertex library also holds a full range of models and
objects, including animals, buildings, furniture and machinery. When
browsing the library, users can view a model with four thumbnail images
from different angles, which they can download for personal use.” Id.
3. Analysis
a. Independent Claims 1, 7, and 11
For independent claims 1, 7, and 11, Petitioner contends that the
proposed combination of Rao and Vertex satisfies each of the limitations.
Pet. 67–79. Patent Owner asserts (among other arguments) (1) that
Petitioner has failed to establish that Vertex qualifies as a prior art printed
publication under 35 U.S.C. § 311(b) and (2) that one of ordinary skill in the
art at the time of the invention would not have modified Rao with Vertex, as
proposed. See Prelim. Resp. 25–27, 40–44. For the reasons below, we
determine that the Petition does not show a reasonable likelihood that
Petitioner would prevail with respect to the contention that claims 1, 7, and
11 would have been obvious based on Rao and Vertex.
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(1) Status of Vertex as a Printed Publication
A petitioner in an inter partes review may challenge the claims of a
patent “only on the basis of prior art consisting of patents or printed
publications.” 35 U.S.C. § 311(b) (emphasis added). “[A]t the institution
stage, the petition must identify, with particularity, evidence sufficient to
establish a reasonable likelihood that [a] reference was publicly accessible
before the critical date of the challenged patent and therefore that there is a
reasonable likelihood that it qualifies as a printed publication.” Hulu, LLC v.
Sound View Innovations, LLC, IPR2018-01039, Paper 29 at 13 (PTAB Dec.
20, 2019) (precedential).11
Petitioner’s summary of Vertex, including the alleged basis for its
status as a prior art printed publication, provides:
The Vertex reference is an October 24, 1996 press release
from Business Wire entitled “The Vertex Opens Virtual Doors as
VRML Forum; VRML 2.0 Users Exchange Ideas and Original
Models Online.” (E[x.] 1038.) The Vertex publication bears a
copyright symbol indicating copyright protection via authorship
accrued in 1996. (Id.) Accordingly, the Vertex reference is prior
art under §102(b) (pre-AIA). ([Weadock Decl. ¶ 101].)
Pet. 47.
Patent Owner argues that Petitioner has failed to meet its burden to
establish that Vertex qualifies as a prior art printed publication. See Prelim.
Resp. 25–27, 38–39. More specifically, Patent Owner argues that,
“Petitioner did not even attempt—in its curt paragraph reproduced above
[in the prior block quote]—to meet its burden to establish with supportive
evidence that the nonpatent Vertex reference was ‘publicly accessible’ . . . .”

11 The decision in Hulu was designated precedential on December 20,
2019, over four months before the filing of the Petition in this proceeding.
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Id. at 25–26 (citing Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331,
1348 (Fed. Cir. 2016)); see also id. at 38–39 (summarizing these arguments
as “threshold matters of procedure” in the context of discussing the asserted
ground of Rao and Vertex). For the reasons below, we agree with Patent
Owner that the Petition does not satisfy the requirement to “identify, with
particularity, evidence sufficient to establish a reasonable likelihood that the
reference was publicly accessible before the critical date of the challenged
patent.” Hulu, Paper 29 at 13.
Public accessibility “has been called the touchstone in determining
whether a reference constitutes a ‘printed publication’ bar under 35 U.S.C.
§ 102(b).” Blue Calypso, 815 F.3d at 1348 (quoting In re Hall, 781 F.2d
897, 898–99 (Fed. Cir. 1986)). In Hulu, the Precedential Opinion Panel
(“POP”) rejected the petitioner’s argument that a reference necessarily meets
“the standard for institution where the reference bears conventional markers
of publication, such as a copyright date, edition identifiers, publication by a
commercial publisher, and the assignment of an ISBN number.” Hulu,
Paper 29 at 17. The POP stated: “We do not hold that any particular indicia
per se is sufficient at the institution stage. Rather, the indicia on the face of
a reference, such as printed dates and stamps, are considered as part of the
totality of the evidence.” Id. at 17–18 (citing Nobel Biocare Servs. AG v.
Instradent USA, Inc., 903 F.3d 1365, 1377 (Fed. Cir. 2018)).
Here, Petitioner relies solely on the text “Copyright 1996 Business
Wire, Inc.” near the top of Vertex as the basis for printed publication status,
stating: “Vertex bears a copyright symbol indicating copyright protection via
authorship accrued in 1996. Accordingly, Vertex is prior art under §102(b)
(pre-AIA).” Pet. 47 (emphasis added) (citation omitted) (citing Ex. 1038;
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Weadock Decl. ¶ 101). As argued by Patent Owner, the Petition did not
include any additional evidence supporting Petitioner’s implicit position that
Vertex was publicly accessible prior to the critical date of the claimed
invention.12 See Prelim. Resp. 26 (arguing that “there is no proffered
evidence as to whether, how, and when [Vertex] was allegedly made
publicly accessible”). Moreover, the paragraph in the Weadock Declaration
relied upon by Petitioner essentially echoes the language in the Petition and
does not include any useful testimony in support of Petitioner’s contention.
Compare Weadock Decl. ¶ 101, with Pet. 47 (first full paragraph).
Numerous Board decisions have held that copyright dates alone are
not sufficient at the institution stage to demonstrate public accessibility. See,
e.g., In-Depth Geophysical, Inc. v. ConocoPhillips Co., IPR2019-00849,
Paper 14 at 10–11 (PTAB Sept. 6, 2019) (informative in relevant part)
(stating that a “copyright notice” “sheds virtually no light on whether the
document was publicly accessible”); Microsoft Corp. v. Corel Software,
LLC, IPR2016-01083, Paper 14 at 13–14, 15 (PTAB Dec. 1, 2016) (“The
copyright notice, alone, however, sheds virtually no light on whether the
document was publicly accessible as of that date, therefore additional
evidence is typically necessary to support a showing of public

12 Petitioner sought authorization to file a reply to the Preliminary
Response and provide additional evidence to address Patent Owner’s
arguments regarding the status of Vertex as a printed publication. See
Ex. 3001. Determining that Petitioner had not shown good cause for a pre-
institution reply, we denied Petitioner’s request. See Paper 11. Petitioner
did not argue that the additional evidence was not available at the time of
filing the Petition; rather, Petitioner argued that additional evidence was not
necessary to establish the status of Vertex as a prior art printed publication.
See id. at 3.
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accessibility. . . . Collectively, all of the information provided by Petitioner
shows only a copyright notice date and that, alone, is insufficient to support
a threshold showing of public accessibility for QuarkXPress.”); see also
Laird Techs. Inc. v. A.K. Stamping Co., IPR2017-02038, Paper 6 at 10
(PTAB Mar. 14, 2018); Power Integrations, Inc. v. Semiconductor
Components Indus., LLC, IPR2017-01975, Paper 9 at 12–14 (PTAB Mar.
12, 2018); Stryker Corp. v. Karl Storz Endoscopy-Am., Inc., IPR2015-
00677, Paper 15 at 18–19 (PTAB Sept. 2, 2015) (discussing how a copyright
notice “does not establish when a document was publicly accessible under
patent law”).
In response to questioning from the panel during a conference call
related to Petitioner’s request for authorization to file a reply to the
Preliminary Response to address the status of Vertex as a printed publication
(see supra note 10), Petitioner identified three Board decisions that allegedly
demonstrate that a copyright notice alone may be sufficient to show public
accessibility. See Ex. 3002, at 1. In two of these decisions, however, the
panels highlighted other evidence, aside from simply a copyright notice,
supporting public accessibility. See Ford Motor Co. v. Cruise Control
Techs. LLC, IPR2014-00291, Paper 44 at 9–10 (PTAB June 29, 2015) (Final
Written Decision) (discussing the copyright notice and declaration testimony
as bases for the determination that a document was shown to be a printed
publication); CIM Maint. Inc. v. P & RO Sols. Grp., Inc., IPR2017-00516,
Paper 8 at 18–20 (PTAB June 22, 2017) (Decision on Institution)
(discussing how a copyright notice, ISBN number, and a statement of
printing by The McGraw-Hill Companies in a textbook excerpt are sufficient
to meet the institution threshold as a printed publication). And although in
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one decision, the panel viewed a copyright notice on a software user’s guide
as adequate evidence that the guide “was published and accessible to users
of the corresponding product” as of the relevant date, the panel then
proceeded to deny institution on the merits. See Int’l Bus. Machs. Corp. v.
Intellectual Ventures II LLC, IPR2014-00681, Paper 11 at 13–14, 16
(Decision Denying Institution) (PTAB Oct. 30, 2014). Moreover, all three
of these decisions precede the decision in Hulu.
On the particular facts here, we determine that Petitioner has not
satisfied the standard set forth in Hulu as to the alleged public accessibility
of Vertex. Accordingly, on the current record, the Petition does not show a
reasonable likelihood that Petitioner would prevail with respect to the
contention that independent claims 1, 7, and 11 would have been obvious
based on Rao and Vertex. In the next section, we address an additional basis
for this overall conclusion.
(2) The Proposed Combination of Rao and Vertex
In the discussion of this asserted ground, Petitioner relies on Rao to
address most of the limitations of the independent claims. See Pet. 69–79.
In the context of the discussion of clauses D (for claims 1 and 7) and F.i (for
claim 11), Petitioner states that, although Rao “does not expressly disclose
that each thumbnail displayed is a different perspective view of the same
article, implementing these elements in the system described by Rao would
not require any additional experimentation or alteration of the Rao
architecture.” Pet. 74 (citing Weadock Decl. ¶ 150). According to
Petitioner, “[t]he only change [to Rao] required would be to alter the corpus
of ‘documents’ displayed by the InfoGrid system such that the thumbnails
displayed embody different views of a single article, such as what is
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described in the Vertex disclosure.” Id. Petitioner states that it would have
been obvious to one of ordinary skill in the art at the time of the invention to
have “combine[d] the teachings of Rao with the teachings of the Vertex
disclosure, which teaches that users can view ‘a model with four thumbnail
images from different angles.’” Id. at 75 (citing Ex. 1038; Weadock Decl.
¶ 152). In describing the proposed modification, Petitioner also states:
For example, [one of ordinary skill in the art] could start with the
design mockup as disclosed in Figure 3 of Rao, but rather than
having the thumbnails displayed be generated from a set of
separate documents or images, [one of ordinary skill in the art]
would instead understand from the teachings of Vertex to
generate the thumbnails from a set of images solely comprising
different views of a single object.
Pet. 68 (citing Weadock Decl. ¶ 140).
Patent Owner contends that Petitioner does not establish a reasonable
likelihood with respect to this asserted ground because the proposed
modification would render Rao inoperable for its intended purpose. See
Prelim. Resp. 40–44. Specifically, Patent Owner states that “Petitioner and
its declarant characterize Rao as allegedly disclosing that its thumbnail
sketches, displayed as a result of a user query, are ‘generated from a set of
separate documents or images’” (Prelim. Resp. 41 (quoting Pet. 68, with
emphasis added)), and asserts that it is therefore “undisputed . . . that Rao is
purposefully designed to display its various documents retrieved from a
query as ‘fixed-size thumbnail sketches that are generally laid out in a grid
(hence, the name InfoGrid)’” (id. (quoting Ex. 1034, at 4)13). According to

13 Patent Owner cites the native page numbering in Rao. See, e.g.,
Prelim. Resp. 41 (citing “p. 26” of Rao). As noted above, we cite the page
numbering added by Petitioner prior to filing. See supra note 10.
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Patent Owner, the proposed modification would render Rao inoperable for
its intended purpose because the modified system “could not return searches
to queries by populating the InfoGrid with thumbnail sketches of distinct
documents” as proposed. Id. at 43. Patent Owner argues that, “under the
proposed modification, Rao’s entire ‘corpus’ of documents would have to be
completely repopulated with entirely different (and potentially irrelevant)
information; and then all queries would, instead, return what Petitioner
ambiguously refers to as ‘different views’ of a singular document.” Id.
We agree with Patent Owner. Where a proposed modification would
render the prior art invention being modified unsatisfactory for its intended
purpose, the proposed modification may not have been obvious. See In re
Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984). As argued by Patent Owner,
the purpose of the InfoGrid system in Rao is to allow a user to search a set of
different items (such as documents) using queries to cull those items down to
a smaller set, and then display the smaller set as a series of thumbnails, each
of which can be selected for closer review. See Prelim. Resp. 41; Pet. 46
(“The InfoGrid framework provides a user the opportunity to identify a
plurality of items via search queries, which can then be examined through
perusal of thumbnail images.” (citing Weadock ¶ 99; Ex. 1034, at 2); see
also supra § II.D.1 (summarizing Rao); Ex. 1034, at 4 (“The user specifies
an initial query by supplying values for various fields in the search
parameter area. . . . The results of the query are displayed in the results area
as some kind of visualization. Currently, retrieved documents are shown as
fixed-size thumbnail sketches that are generally laid out in a grid (hence, the
name InfoGrid).”).
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As argued by Patent Owner, the proposed modification—replacing the
set of different items in Rao (e.g., documents) with images of different views
of the same item (see, e.g., Pet. 68, 74–76)—would render Rao
unsatisfactory for the intended purpose discussed above. See Prelim. Resp.
43 (“Petitioner suggests that no modification would need to be made to the
querying technique disclosed in Rao, which is expressly designed to locate
and display multiple distinct documents pertaining to the query.”). This
provides an additional basis for the overall conclusion reached above (see
supra § II.D.3.a(1)) that the Petition does not show a reasonable likelihood
that Petitioner would prevail with respect to the contention that independent
claims 1, 7, and 11 would have been obvious based on Rao and Vertex.
b. Claims 2, 5, 6, and 8
Claims 2, 5, and 6 depend from claim 1, and claim 8 depends from
claim 7. This asserted ground as to claims 2, 5, 6, and 8 includes the same
deficiencies discussed in the prior section addressing independent claims 1,
7, and 11 (see § II.D.3.a). See Pet. 79–80. Thus, we determine that the
Petition does not show a reasonable likelihood that Petitioner would prevail
with respect to the contention that claims 2, 5, 6, and 8 would have been
obvious based on Rao and Vertex.
E. Asserted Obviousness of Claims 1, 2, 5–8, and 11 Based on Smith
and Salas
Petitioner asserts that claims 1, 2, 5–8, and 11 of the ’498 patent are
unpatentable under 35 U.S.C. § 103(a) based on Smith and Salas. Pet. 41,
80–96. Patent Owner provides arguments addressing this asserted ground.
Prelim. Resp. 44–50. We first summarize aspects of Smith and Salas.
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1. Smith
Smith discloses a graphical user interface for configuring and ordering
office furniture. Ex. 1039, code (57). Figure 12 of Smith is reproduced
below:

Figure 12 depicts a user interface allowing the user to select from one
of the displayed clustering options. Ex. 1039, p. 32, ll. 2–7. In the depicted
user interface, the user has selected one of the seven clustering options
displayed within a rectangle, with the selected option surrounded by a dotted
line. Id., Fig. 12. A copy of the selected option is also displayed off to the
right of the rectangle. Id.
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Figure 13 is reproduced below:

Figure 13 depicts a user interface presenting to the user the selected
cluster of “typicals.” Ex. 1039, p. 32, ll. 16–18. To the selected
configuration, a user can add other detached items, such as chairs (as
discussed below). Id. at p. 32, ll. 19–20. Figure 14 is reproduced below:

Figure 14 depicts a user interface presenting to the user a display of
chairs. Ex. 1039, p. 32, ll. 22–24. Using the interface in Figure 14, a user
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can select one of the different chairs displayed for placement in the current
cluster or typical. Id. at p. 32, ll. 20–26.
2. Salas
Salas discloses a system “for producing a computer-generated display
that permits visualization of one or more items in a user-provided
environment.” Ex. 1040, code (57). Figure 7 of Salas is reproduced below:

Figure 7 “is a schematic representation of the system for visualizing
items in a user-provided environment, illustrating features for viewing item
images of an item from various perspectives.” Ex. 1040, p. 8, ll. 27–28. As
shown at the top of Figure 7, the system includes “a plurality of the sub-
image objects 215 of the set 213 [that] comprise a series of views of an item
53,” depicted as a chair in this example. Id. at p. 21, ll. 32–37. Sub-image
objects 215 are “taken from different perspectives for use in conjunction
with an image of a selected environment,” such as background image 55
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shown in screen 5 at the bottom left portion of Figure 7. Id. at p. 21, ll. 32–
37; p. 23, ll. 3–7.
3. Analysis
a. Independent Claims 1, 7, and 11
For independent claims 1, 7, and 11, Petitioner contends that the
proposed combination of Smith and Salas satisfies each of the limitations.
Pet. 83–95. Patent Owner asserts (among other arguments) that the
proposed combination does not satisfy the requirement, in each independent
claim, of simultaneously providing thumbnail images of at least two views
of the same “article.” See Prelim. Resp. 49–50. For the reasons below, we
determine that the Petition does not show a reasonable likelihood that
Petitioner would prevail with respect to the contention that claims 1, 7, and
11 would have been obvious based on Smith and Salas.
We first discuss why each of the independent claims includes a
requirement for simultaneously providing thumbnail images of at least two
views of the same “article,” starting with claim 1. As to the same
requirement, clause A of claim 1 recites providing “a plurality of thumbnail
images of said article” and then, in clauses B and D, makes clear that each of
those “images” represents a “different perspective view of the same said
article.” Ex. 1001, 11:29–31, 11:35–37 (emphasis added). In addition,
clauses C and G in claim 1 support the simultaneously requirement in that,
for a user to “select one of said plurality of images for display” or to
“provid[e] a distinctive characteristic to said one of said plurality of
thumbnail images selected by said user,” at least two images must be shown
simultaneously. See id. at 11:33–35, 11:39–41. This understanding of claim
1 aligns with the embodiment in Figure 3. See, e.g., Ex. 1001, 5:31–34
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(discussing “field 78 including electronic thumbnail images 80, 82 and 84,
each thumbnail image representing a different view of the same article” as
shown in Figure 3); see also Pet. 24 (including Figure 3 in the overview of
the ’498 patent).
Turning to claim 7, the preamble and clause B could be viewed, out of
context, as supporting the understanding that the “thumbnail images” need
not be of the same article in that both the preamble and clause B expressly
recite a “plurality of articles.” Ex. 1001, 12:9–11, 12:13–14. Clause D,
however, recites that “each respective perspective view represents a different
perspective view of the same said article.” Id. at 12:17–19 (emphasis
added). Considering claim 7 as a whole, we view clause D as limiting the
“plurality of thumbnail images” to images of the same “article.” In support
of this view, Petitioner takes the position that the independent claims include
“nearly identical elements.” Pet. 26. In addition, clauses C and G in claim 7
closely align with clauses C and G in claim 1 and thus support the
simultaneously requirement for the same reasons discussed above with
respect to claim 1. This understanding of claim 7 is supported by the
embodiment in Figure 3.
Turning to claim 11 and the same requirement, clauses A and B
together require providing “a first perspective view of an article” and then
clause F.ii requires providing “a second perspective view of the same
article.” Ex. 1001, 12:40–41, 12:44–48 (emphasis added). In addition,
clause H supports the simultaneously requirement in that, for a user to
“select one of the first or second thumbnail images for display,” at least two
images must be shown simultaneously. See id. at 12:50–52. This
understanding of claim 11 also aligns with the embodiment in Figure 3.
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We now summarize Petitioner’s position as to why the proposed
modified system allegedly satisfies the requirements discussed above. We
first explain the proposed modification of Smith based on Salas and then
turn to Petitioner’s discussion of the requirements at issue. Petitioner states
that one of ordinary skill in the art “could start with the graphical user
interface disclosed by Smith showing a display of varying articles of
different categories, and supplement it with the multiple views of a single
particular article as disclosed by Salas.” Pet. 81 (emphasis added) (citing
Weadock Decl. ¶ 162). According to Petitioner, “[t]he element taught by
Salas (e.g., multiple views of a single article) is a well-known element that
can easily be implemented with other systems.” Id. (citing Weadock Decl.
¶ 162). Discussing the proposed modification, Petitioner also states that one
of ordinary skill in the art:
would know to combine the object selection interface of Smith
with the use of multiple views of a single object from varying
angles as taught by Salas, in order for a user to easily select a
desired orientation of a particular object for manipulation on the
desired workplace configuration previously selected, particularly
when multiple versions of the same article (such as a chair) are
desired to be displayed in different orientations on the same
workspace configuration.
Pet. 91 (citing Weadock Decl. ¶ 177).
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Petitioner also provides the following modified version of Figure 14
of Smith:

Pet. 92. Figure 14 of Smith, prior to modification, depicted a user interface
presenting to the user a display of chairs. Ex. 1039, p. 32, ll. 16–18.
According to Petitioner, this version of Figure 14 of Smith is “modified to
include the multiple views of a chair from Salas.” Id. at 91; see also
Ex. 1040, Fig. 7 (upper portion – showing set of image objects 213 of item
53, in the form of a chair).
Petitioner addresses the same and simultaneously requirements in the
context of the joint discussion of clause D in claims 1 and 7, and clause F.i
in claim 11. See Pet. 90–92. Specifically, Petitioner states that, although
“Smith does not expressly disclose that each thumbnail displayed is a
different perspective view of the same article, Salas discloses the use of
different perspective views of the same article.” Id. at 90. According to
Petitioner, Salas “discloses a ‘pseudo-translational improvement,’ which
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provides ‘item images’ of the ‘image objects being displayed on the screen
with quasi-three-dimensional viewing and movement characteristics.’” Id.
(citing Ex. 1040, at 7). Petitioner quotes Salas’s statement that “[v]arious
software products are presently available that allow a user to view images of
an item from different angles . . . .” Ex. 1040, p. 22, ll. 7–8, quoted at
Pet. 91.
Patent Owner argues that “Petitioner’s suggestion that Salas
simultaneously provides the user a showroom with ‘multiple views of a
single particular article’ is misleading and overlooks explicit disclosure in
Salas to the contrary.” Prelim. Resp. 49 (citing Pet. 90). According to
Patent Owner, “Salas’[s] sub-image objects 215 [shown at the top] of Figure
7 are not simultaneously shown side-by-side as thumbnails, as Petitioner
suggests, but rather they are shown individually, one at time.” Id. at 50.
The record supports Patent Owner’s understanding of Salas.
As highlighted by Patent Owner, in the discussion of Figure 7, Salas
discloses that a user selection causes only “[a] first or initial one of the
plurality of sub-image objects 215 of the object image set 213 . . . to be
displayed on the screen, such as the sub-image object 215 designated by the
numeral 216 in Fig. 7.” Ex. 1040, p. 22, ll. 23–26 (emphasis added), quoted
at Prelim. Resp. 49; see also Ex. 1040, p. 22, ll. 33−35 (“When selecting an
image object 25 having ingredients providing characteristics that utilize the
movable 3D improvement 33, the first sub-image object 216 in the sequence
of the plurality of sub-image objects 215 of the image object set 213 is
displayed on the background image 55.”), cited at Prelim. Resp. 49. Salas
also discloses, as noted by Patent Owner, that:
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By clicking and dragging a slider portion 223 of the control
image 217, the sub-image object 215 displayed on the screen 5
can be removed and replaced with the next preceding or
succeeding sub-image object 215 in the sequence of associated
sub-image objects 215 by appropriately moving the slider
portion 223 from side to side of the control image 217.
Ex. 1040, p. 23, ll. 4–7, quoted, in part, at Prelim. Resp. 49. Taken together,
these disclosures indicate that the three different sub-image objects 215 of
item 53 at the top of Figure 7 of Salas are never displayed simultaneously on
screen 5. Instead, only one of the sub-image objects 215 is displayed on
screen 5 at a particular time (as shown, for example, in the bottom left
portion of Figure 7). See Ex. 1040, p. 22, ll. 23–26, cited at Prelim. Resp.
49. Instead, based on a user’s manipulation of slider portion 223, the
currently displayed sub-image object 215 is “removed and replaced with the
next preceding or succeeding sub-image object 215,” thereby flipping
through each stored sub-image object 215 one at a time. See Ex. 1040,
p. 23, ll. 4–7 (emphasis added), cited at Prelim. Resp. 49. Thus, the version
of Figure 14 of Smith modified to show multiple sub-image objects 215
from Figure 7 of Salas simultaneously displayed on display screen 127 of
Smith—allegedly characterizing the proposed modification (see Pet. 92)—
does not accurately portray the relied-upon teachings of Salas. As discussed
above, in Salas, only one sub-image object 215 is displayed at a time. For
the reasons above, we determine, based on the current record, that the
Petition does not show a reasonable likelihood that Petitioner would prevail
with respect to the contention that independent claims 1, 7, and 11 would
have been obvious based on Smith and Salas.
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b. Claims 2, 5, 6, and 8
Claims 2, 5, and 6 depend from claim 1, and claim 8 depends from
claim 7. This asserted ground as to claims 2, 5, 6, and 8 includes the same
deficiency discussed in the prior section addressing independent claims 1, 7,
and 11 (see § II.E.3.a). See Pet. 95–96. Thus, we determine that the Petition
does not show a reasonable likelihood that Petitioner would prevail with
respect to the contention that claims 2, 5, 6, and 8 would have been obvious
based on Smith and Salas.
III. CONCLUSION
For the reasons above, we determine that the Petition does not show a
reasonable likelihood that Petitioner would prevail with respect to at least
one of challenged claims 1, 2, 5–8, and 11 of the ’498 patent.
IV. ORDER
For the reasons above, it is:
ORDERED that the Petition is denied as to all challenged claims, and
no inter partes review is instituted.
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FOR PETITIONER:

Richard W. Miller (lead counsel)
Lynn E. Rzonca
Brian S.S. Auerbach
BALLARD SPAHR LLP
millerrw@ballardspahr.com
rzoncal@ballardspahr.com
auerbachb@ballardspahr.com

FOR PATENT OWNER:

Ryan Loveless (lead counsel)
Brett Mangrum
James Etheridge
Brian Koide
Jeffrey Huang
Jeffrey A. Stephens
ETHERIDGE LAW GROUP
ryan@etheridgelaw.com
brett@etheridgelaw.com
jim@etheridgelaw.com
brian@etheridgelaw.com
jeff@etheridgelaw.com
jstephens@etheridgelaw.com