Apple Inc., TWITTER, INC., AND YELP INC.,v.Evolutionary Intelligence

Patent Trial and Appeal BoardJul 24, 2015

09284113 (P.T.A.B. Jul. 24, 2015)

Trials@uspto.gov Paper 44 571-272-7822 Entered: July 24, 2015 UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ APPLE INC., TWITTER, INC., AND YELP INC., Petitioner, v. EVOLUTIONARY INTELLIGENCE, LLC, Patent Owner. ____________ Case IPR2014-00086 Case IPR2014-00812 Patent 7,010,536 B1 ____________ Before KALYAN K. DESHPANDE, BRIAN J. McNAMARA, and GREGG I. ANDERSON, Administrative Patent Judges. ANDERSON, Administrative Patent Judge. DECISION Petitioner’s Request for Rehearing 37 C.F.R. § 42.71 Case IPR2014-00086 Case IPR2014-00812 Patent 7,010,536 B1 2 INTRODUCTION On October 22, 2013, Apple, Inc. (“Petitioner”) 1 filed a Petition requesting inter partes review of claims 2–14 and 16 of U.S. Patent No. 7,010,536 (Ex. 1001, “the ’536 patent”). Paper 1 (“Pet.”). On April 25, 2014, we granted the Petition and instituted trial for claims 2–12, 14, and 16 of the ’536 patent on all of the grounds of unpatentability alleged in the Petition. Paper 8 (“Decision on Institution” or “Dec. Inst.”). Evolutionary Intelligence, LLC (“Patent Owner”) filed a Patent Owner Response. Paper 20 (“PO Resp.”). Petitioner filed a Reply. Paper 28 (“Pet. Reply”). An oral hearing was held on January 6, 2015. The transcript of the consolidated hearing has been entered into the record. Paper 41 (“Tr.”). In our Final Written Decision entered April 16, 2015 (Paper 41, “Final Decision” or “Final Dec.”), we determined that Petitioner had not shown by a preponderance of the evidence that claims 2–12, 14, and 16 of the ’536 patent were unpatentable as anticipated under 35 U.S.C. § 102(e) by Gibbs (Ex. 1006). Final Dec. 29. Petitioner requests rehearing of our Final Decision (Paper 43, “Request” or “Req. Reh’g”). Petitioner asserts three grounds for rehearing. The first ground is that we misapprehended the evidence regarding whether Gibbs discloses the claimed container. Req. Reh’g. 2–10. Second, it is alleged we erred as a matter of law in our construction of “a first register 1 Twitter, Inc. and Yelp Inc. filed a Petition in case IPR2014-00812 against the same patent, which case was joined with this case. Decision Granting Motion for Joinder (Paper 16). Twitter, Inc. and Yelp Inc. are also collectively referred to as “Petitioner” in this case. Case IPR2014-00086 Case IPR2014-00812 Patent 7,010,536 B1 3 having a unique container identification value.” Id. at 10–13. Last, Petitioner contends we misapprehended the evidence whether Gibbs’ discloses a neutral space register. Id. at 14–15. For at least the reasons that follow, Petitioner’s Request for Rehearing is denied. ANALYSIS A. Standard Applied Petitioner bears the burden of showing the decision should be modified. 37 C.F.R. § 42.71(d). Further, Petitioner “must specifically identify all matters the party believes the Board misapprehended or overlooked, and the place where each matter was previously addressed in a motion, opposition, or a reply.” Id. B. Gibbs Discloses a “container” as Claimed The Final Decision made the determination that Gibbs does disclose a “container” but did not disclose the container “as claimed.” Final Dec. 19. Petitioner makes two arguments that Gibbs discloses the claimed container. 1. Gibbs Logical Data Structure is a “container” First, Petitioner argues we misapprehended Gibbs, which Petitioner alleges discloses a single, logically defined enclosure comprising the instantiated transport, map, and report objects. Req. Reh’g. 2–8. As Petitioner argued in its Petition, in the Final Decision we determined that the separate objects of Gibbs were containers. Final Dec. 17, 19. However, we did not find Gibbs discloses the container as claimed where “container” is defined further as including the specified registers, which registers interact with each other. Id. at 19–20. We concluded: Thus, while Gibbs may disclose some objects that function like Case IPR2014-00086 Case IPR2014-00812 Patent 7,010,536 B1 4 the claimed registers, Gibbs does not disclose the claimed container. Rather, the “attributes or data items disclosed by Gibbs are each described as belonging to particular objects, not as generically belonging to every object in Gibbs’[s] system.” PO Resp. 26. Final Dec. 23–24 (emphasis added). Petitioner’s final position is that Gibbs is a system that discloses an architecture and objects which anticipate the claims. See Final Dec. 18–19 (citing Pet. Reply 1, 3). However, Petitioner did not establish that all of the objects of the Gibbs system interact with a every other object, i.e., belong with every other object. We have reviewed the evidence relied on by Petitioner in its Request, specifically the Houh Declaration (Ex. 1003) and Hough Supplemental Declaration (Ex. 1009). We referenced both declarations throughout the Final Decision. See Final Dec. 11, 15, 18, 19, 20, 22, 23, 24, 25, and 26. We credited the testimony of Patent Owner’s expert, Dr. Green, that the transport object library of Gibbs is distinct from the service object library. Final Dec. 23 (citing Ex. 2006 ¶¶ 86–94; see Ex. 1006, Fig. 4). We specifically agreed with Dr. Green’s conclusion that: Gibbs thus discloses the objects in Figure 4 as falling into two genuses: transport objects and service objects. Gibbs discloses each of these genuses as a library (i.e., “transport object library 64” and service object library 66”) that consists of specific types of objects. Id. (citing Ex. 2006 ¶ 88). Conversely, the Houh testimony presented with the Petition was that the objects of Gibbs “exemplify the ‘containers’ claimed in claim 2 of the ’536 patent.” Final Dec. 22 Case IPR2014-00086 Case IPR2014-00812 Patent 7,010,536 B1 5 (citing Ex. 1003 ¶ 110). As Patent Owner argued in its Response, Petitioner’s final position is arguably a change from its original contention set forth in the Petition. PO Resp. 24, 37–38; see Final Dec. 18–19. Patent Owner argued that the testimony regarding where the “container” element was shown in Gibbs changed between the original Houh Declaration (Ex. 1003), filed with the Petition, and the later filed Houh Supplemental Declaration (Ex. 1009) and the Houh Deposition (Ex. 1010). PO Resp. 24, 37–38 Petitioner’s final position, repeated in the Request, mirrors the later Houh testimony. See, e.g., Req. Reh’g. 3, 4, 5, 6, 7. We did not misapprehend those arguments. Rather, we found them unpersuasive. Petitioner argues we misapprehended or overlooked evidence that the Gibbs train management software “in operation creates ‘containers.’” Req. Reh’g. 4. Petitioner concludes that because the single map object interacts with report and transport objects the interactive registers are disclosed in Gibbs. Id. at 5. This argument again relies on the Houh testimony. Id. at 4 (citing Ex. 1003 ¶¶ 91, 93, 128, 161, 166, 172; Ex. 1009 ¶¶ 14, 33–34). We specifically addressed this argument, and found it unpersuasive, in the Final Decision. Final Dec. 18, 20, 22. Neither the Petition nor the Houh Declaration stated specifically that a collection of objects that run in the system of Gibbs is the claimed container. Id. at 22 (citing Ex. 1003 ¶¶ 90, 92, 94, 96–97, 104). The Houh Declaration identified only Gibbs’ objects as meeting the container limitation, and not the Gibbs system as Petitioner now argues. Id. “As such, Petitioner’s evidence is inconsistent and does not specify where the container element is found in Gibbs.” Id. at 23. Case IPR2014-00086 Case IPR2014-00812 Patent 7,010,536 B1 6 It is within the Board’s discretion to assign the appropriate weight to testimony offered by the witnesses. Yorkey v. Diab, 601 F.3d 1279, 1284 (Fed. Cir. 2010) (Board has discretion to give more weight to one item of evidence over another “unless no reasonable trier of fact could have done so”). The Board declines to reweigh the evidence in considering a motion for rehearing. Ex parte NTP, Inc., Appeal No. 2008-004594, 2010 WL 429233, at *1 (BPAI Feb. 4, 2010). 2. Consistent Reliance on Gibbs’ System Petitioner next argues it consistently relied on the system of Gibbs, a set of objects, and not just Gibbs’ objects as disclosing the container limitation. Req. Reh’g. 8–9. As discussed immediately above, the Final Decision found that Petitioner’s evidence from the beginning of trial to its conclusion was inconsistent. However, as also discussed above, we were persuaded by the Green testimony concerning what was disclosed in Gibbs and rather than arguable inconsistency in the Hough testimony. We weighed the evidence and found that Petitioner had not established by a preponderance of the evidence that Gibbs disclosed the container limitation. That Petitioner disagrees is not a reason for granting rehearing. C. The Construction of “a first register having a unique container iIdentification value” Petitioner alleges we committed legal error in construing the claim term “a first register having a unique container identification value” in claim 2 to mean “a first register having a value that uniquely identifies the given container.” Req. Reh’g. 10–13. Petitioner argues this construction is too limited and is not the broadest reasonable interpretation. Id. Case IPR2014-00086 Case IPR2014-00812 Patent 7,010,536 B1 7 The Request restates arguments made in Petitioner’s Reply and rejected in the Final Decision. Req. Reh’g. 11; see Final Dec. 12–13. Petitioner contends we overlooked evidence that favored Petitioner’s proposed construction. Req. Reh’g. 11–12. The overlooked evidence cited by Petitioner is the deposition testimony of the experts. Id. at 12. The testimony Petitioner cites was specifically addressed. Final Dec. 14. We considered the claim language, Specification, and prosecution history and did not rely on extrinsic evidence. Id. at 13–15. Petitioner does not show where we misapprehended or overlooked the arguments previously made or the evidence previously presented. In our construction based on the Specification (Final Dec. 13–14), Petitioner argues we committed error in incorporating “only a portion of the definition of an ‘identity register’ – that it contain a ‘unique identification’ of the ‘given container’” and omitted that the identity register is “network wide.” Req. Reh’g. 13. Even were we to expand the construction as proposed by Petitioner, there is no explanation of how the addition of “network wide” would support Petitioner’s proposed construction and thus change the outcome of the case. Neither does Petitioner argue persuasively that the additional language it proposes is a necessary addition to our construction. D. Gibbs Discloses a “neutral space register” Petitioner argues we overlooked or misapprehended evidence that Gibbs discloses a neutral space register, as we construed the term. Req. Reh’g. 14–15. In its Petition, Petitioner relied on the train consist report of Gibbs to meet the limitation. Id. at 14 (citing Pet. 18). Following our construction, we concluded the train consist report did not meet the Case IPR2014-00086 Case IPR2014-00812 Patent 7,010,536 B1 8 limitation because no space was identified where interaction may occur. Final Dec. 27. We found Petitioner’s arguments citing to Gibbs train consist report and concluding that a neutral register was present were not persuasive, but merely conclusory. Id. Petitioner’s first contention is that we failed to appreciate that a train must be “depicted on the map” before it can be selected for the train consist report. Req. Reh’g. 14–15. Then, upon selection of a train, the user can “initiate the interaction between the transport object and the report object.” Id. at 15 (citing Pet. Reply 14–15). We addressed this argument in the Final Decision and, as stated above, found the argument to be unsupported conclusion. Final Dec. 27. Further, we agreed with Patent Owner’s arguments, which were not addressed by Petitioner. Id. The arguments we found persuasive included that the train consist report generated locational information, i.e., space where interaction may occur, only after a train was selected. Id. (see PO Resp. 52). Space was identified only after another action. Id. The Request does not address this basis for our decision or show how we misapprehended the train consist report in reaching our determination. Next, Petitioner argues we erred in finding that the longitude and latitude data generated by the train consist report were “mere data” when our construction of “neutral space register” stated that the space identified was a “value.” Req. Reh’g. 15. Petitioner misunderstands our reasoning in the Final Decision. We did not exclude data from being part of what might be identified as space for interaction in the neutral space register. Rather, we determined that the “mere collection of data” alone does not disclose the recited interaction. Final Dec. 27. Case IPR2014-00086 Case IPR2014-00812 Patent 7,010,536 B1 9 CONCLUSION Petitioner has not carried its burden of demonstrating that our Final Decision determining that claims 2–14 and 16 of the ’536 patent are not unpatentable under 35 U.S.C. § 102 over Gibbs misapprehended or overlooked any matters or that the Board abused its discretion. 37 C.F.R. § 42.71(d). ORDER For the foregoing reasons, it is ORDERED that Petitioner’s Request for Rehearing is denied. PETITIONER: Jeffrey Kushan jkushan@sidley.com Vaibhav P. Kadaba wkadaba@kilpatricktownsend.com Robert J. Artuz rartuz@kilpatricktownsend.com PATENT OWNER Anthony Patek pto@gutridesafier.com Todd Kennedy todd@gutridesafier.com

Apple Inc., TWITTER, INC., AND YELP INC., v. Evolutionary Intelligence