Apple Inc.v.Smartflash LLC

Patent Trial and Appeal Board

Sep 25, 2015

12014558 (P.T.A.B. Sep. 25, 2015)

Trials@uspto.gov Paper 48
Tel: 571-272-7822 Entered: September 25, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

APPLE INC.,
Petitioner,
v.
SMARTFLASH LLC,
Patent Owner.

Case CBM2014-00112
1

Patent 7,942,317 B2

Before JENNIFER S. BISK, RAMA G. ELLURU, JEREMY M. PLENZLER, and
MATTHEW R. CLEMENTS, Administrative Patent Judges.
ELLURU, Administrative Patent Judge.
FINAL WRITTEN DECISION
35 U.S.C. § 328(a) and 37 C.F.R. § 42.73

1
Case CBM2014-00113 has been consolidated with the instant proceeding.
CBM2014-00112
Patent 7,942,317 B2
2
I. INTRODUCTION
A. Background
Petitioner, Apple Inc. (“Apple”), filed two Petitions to institute covered
business method patent review of claims 1, 6–8, 12–14, 16, and 18 (“the
challenged claims”) of U.S. Patent No. 7,942,317 B2 (Ex. 1001, “the ’317
patent”) pursuant to § 18 of the Leahy-Smith America Invents Act (“AIA”).
CBM2014-00112 (Paper 2, “112 Pet.”) and CBM2014-00113 (Paper 2, “113
Pet.”).
2
On September 30, 2014, we consolidated CBM2014-00112 and
CBM2014-00113 and instituted a transitional covered business method patent
review (Paper 7, “Decision to Institute” or “Dec.”) based upon Petitioner’s
assertion that claims 1, 6–8, 12, 13, 16, and 18 are unpatentable based on the
following grounds:
Reference[s]
3
Basis Claims Challenged
Stefik ’235
4
and Stefik ’980
5
§ 103(a) 1, 6–8, 12, 13, 16,
and 18
Ginter
6
§ 103(a) 1, 6–8, 12, 13, 16,
and 18
Dec. 22. Petitioner provides declarations from Anthony J. Wechselberger
(“Wechselberger Decl.”) in support of its petitions. 112 Ex. 1021; 113 Ex. 1121.

2
Unless otherwise specified, hereinafter, paper numbers refer to paper numbers in
CBM2014-00112.
3
Exhibits with numbers 1001–1029 were filed in CBM2014-00112 and
those with numbers 1101–1129 were filed in CBM2014-00113. For
purposes of this decision, where the two cases have duplicate exhibits, we
refer to the exhibit filed in CBM2014-00112.
4
U.S. Patent No. 5,530,235 (June 25, 1996) (Ex. 1013, “Stefik ’235”).
5
U.S. Patent No. 5,629,980 (May 13, 1997) (Ex. 1014, “Stefik ’980”).
6
U.S. Patent No. 5,915,019 (June 22, 1999) (Ex. 1015, “Ginter”).
CBM2014-00112
Patent 7,942,317 B2
3
Subsequent to institution, Patent Owner filed a Patent Owner Response
(Paper 22, “PO Resp.”) and, in support, a declaration from Jonathan Katz, Ph.D.
(Ex. 2031, “Katz Declaration”). Petitioner filed a Reply (Paper 30, “Pet. Reply”)
to Patent Owner’s Response.
An oral hearing was held on July 7, 2015, and a transcript of the hearing is
included in the record (Paper 47, “Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). This Final Written Decision is
issued pursuant to 35 U.S.C. § 328(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, 6–8, 12, 13, 16, and 18 of the ’317
patent are unpatentable.
B. The ’317 Patent
The ’317 patent relates to “a portable data carrier for storing and paying for
data and to computer systems for providing access to data to be stored” and the
“corresponding methods and computer programs.” Ex. 1001, 1:18–23. Owners of
proprietary data, especially audio recordings, have an urgent need to address the
prevalence of “data pirates” who make proprietary data available over the internet
without authorization. Id. at 1:38–51. The ’317 patent describes providing
portable data storage together with a means for conditioning access to that data
upon validated payment. Id. at 1:55–2:3. This combination allows data owners to
make their data available over the internet without fear of data pirates. Id. at 2:3–
11.
As described, the portable data storage device is connected to a terminal for
internet access. Id. at 1:55–63. The terminal reads payment information, validates
that information, and downloads data into the portable storage device from a data
CBM2014-00112
Patent 7,942,317 B2
4
supplier. Id. The data on the portable storage device can be retrieved and output
from a mobile device. Id. at 1:64–67.
The ’317 patent makes clear that the actual implementation of these
components is not critical and may be implemented in many ways. See, e.g., id. at
25:49–52 (“The skilled person will understand that many variants to the system are
possible and the invention is not limited to the described embodiments.”).
C. Related Matters
The parties indicate that Smartflash has sued Apple for infringement of the
’317 patent and identify the following district court case: Smartflash LC v. Apple
Inc., Case No. 6:13-cv-447 (E.D. Tex.). See, e.g., 112 Pet. 15–16; 112 Papers 4, 5.
Patent Owner indicates that other patents in the same patent family are the subject of
several other district court cases. Paper 32, 2–3.
In addition to the 112 and 113 Petitions, Apple, as well as other Petitioners,
has filed numerous other Petitions for covered business method patent review
challenging claims of patents owned by Smartflash and disclosing similar subject
matter.
D. The Instituted Claims
We instituted review of claims 1, 6–8, 12, 13, 16, and 18 of the ’317 patent.
Dec. 22. Claims 1, 8, 12, 16, and 18 are independent. Claims 6 and 7 depend from
claim 1 and claim 13 depends from claim 12. Claims 1 and 8 are illustrative of the
claims at issue and recite the following:
1. A computer system for providing data to a data requester,
the system comprising:
a communication interface;
a data access data store for storing records of data items available from the
system, each record comprising a data item description and a pointer to a data
provider for the data item;
CBM2014-00112
Patent 7,942,317 B2
5
a program store storing code implementable by a processor;
a processor coupled to the communications interface, to the data access data
store, and to the program store for implementing the stored code, the code
comprising:
code to receive a request for a data item from the requester;
code to receive from the communications interface payment data comprising
data relating to payment for the requested data item;
code responsive to the request and to the received payment data, to read data
for the requested data item from a content provider; and
code to transmit the read data to the requester over the communications
interface.
Ex. 1001, 25:55–26:8.
8. A method of providing data to a data requester comprising:
receiving a request for a data item from the requester;
receiving payment data from the requester relating to payment for the
requested data;
reading the requested data from a content provider responsive to the received
payment data; and
transmitting the read data to the requester.
Id. at 26:36–43.
II. EVIDENTIARY MATTERS
A. Wechselberger Declarations
In its Response, Patent Owner urges that the 112 and 113 Wechselberger
declarations should be given little or no weight. PO Resp. 4–8; see Tr. 72:23–
73:17. In its Preliminary Response, Patent Owner argued that we should disregard
the declarations, but we determined that Patent Owner did not offer any evidence
that Mr. Wechselberger “used incorrect criteria, failed to consider evidence, or is
CBM2014-00112
Patent 7,942,317 B2
6
not an expert in the appropriate field.” Dec. 4 n.9. Patent Owner renews its
contention arguing that because Mr. Wechselberger’s declarations do not state the
evidentiary weight standard that he used in arriving at his conclusions, he “‘used
incorrect criteria.’” PO Resp. 5. Referring to excerpts from Mr. Wechselberger’s
deposition, Patent Owner contends that he “could neither articulate what the
difference was between ‘substantial evidence’ and ‘preponderance of the
evidence,’ nor could he articulate which standard he was supposed to use when
alleging invalidity of claims in a patent.” Id. at 5–7. Thus, concludes Patent
Owner, we can only afford little or no weight to his testimony, otherwise we would
be accepting his opinion without knowing “‘the underlying facts . . . on which the
opinion is based’ (i.e., how much evidence he thinks show any of his opinions
discussed therein).” Id. at 7.
In its Reply, Petitioner argues that “Mr. Wechselberger is a highly-qualified
expert,” that Patent Owner offers no evidence disputing that he is a qualified
expert, and that an expert is not required to recite or apply the “preponderance of
standard’ expressly in order for the expert opinion to be accorded weight.” Pet.
Reply 20–21 (citation omitted).
Patent Owner has not articulated a persuasive reason for giving Mr.
Wechselberger’s declarations, as a whole, little or no weight in our analysis.
Patent Owner has not cited any authority requiring an expert to recite or apply the
“preponderance of the evidence” standard in order for the expert opinion to be
accorded weight. Under 37 C.F.R. 42.1(d), we apply the preponderance of the
evidence standard in determining whether Petitioner has established
unpatentability. In doing so, it is within our discretion to determine the appropriate
weight to be accorded to the evidence presented, including the weight accorded to
expert opinion, based on the disclosure of the underlying facts or data upon which
CBM2014-00112
Patent 7,942,317 B2
7
the opinion is based. Thus, we decline to make a determination about Mr.
Wechselberger’s opinion, as a whole. Rather, in our analysis, we will consider, as
it arises, relevant opinion from Mr. Wechselberger and give it due weight, if
appropriate.
B. Katz Declaration
Petitioner contends that “Dr. Katz’s unsupported opinions, to the extent that
they are given any weight at all, should be given far less weight than Mr.
Wechselberger’s.” Pet. Reply 16–20. Specifically, Petitioner argues that Dr. Katz
is not qualified as a person of ordinary skill in the art under either party’s
definition, he repeatedly stated that “he was ‘not sure’ about various technologies
that are indisputably in the relevant prior art, and that he does not know what a
POSITA would have understood about that technology,” and he repeatedly stated
that “he was ‘not sure’ how a POSITA would interpret several passages of the
cited prior art and several passages of the challenged patent[].” Pet. Reply 2–3,
16–20; Tr. 50:8–57:19. Thus, concludes Petitioner, “Dr. Katz (a) does not know
this information and is therefore not a qualified expert and/or (b) did not properly
consider the scope and content of the prior art or a POSITA’s understanding of the
prior art.” Id. at 20.
We decline to make a determination as to Dr. Katz’s testimony as a whole.
As noted above, we have the discretion to determine the appropriate weight to be
accorded to the evidence presented, including the weight accorded to expert
opinion, based on the disclosure of the underlying facts or data upon which the
opinion is based. Thus, in our analysis, we will consider, as it arises, relevant
opinion from Dr. Katz and give it due weight, if appropriate.
CBM2014-00112
Patent 7,942,317 B2
8
III. ANALYSIS
A. Claim Construction
We construe all terms, whether or not expressly discussed here, using the
broadest reasonable construction in light of the ’317 patent specification. See
37 C.F.R. § 42.300(b); see also In re Cuozzo Speed Techs., LLC, 793 F.3d 1268,
1278–80 (Fed. Cir. 2015) (“Congress implicitly approved the broadest reasonable
interpretation standard in enacting the AIA,” and “the standard was properly
adopted by PTO regulation.”). Applying that standard, we interpret the claim
terms of the ’317 patent according to their ordinary and customary meaning in the
context of the ’317 patent’s written description. See In re Translogic Tech., Inc.,
504 F.3d 1249, 1257 (Fed. Cir. 2007). In the Decision to Institute, we construed
the term “use rule data” as “data for a rule specifying a condition under which
access to content is permitted.” Dec. 7. Neither party contests this construction.
We discern no reason to deviate from this construction of “use rule data.” For
purposes of this Final Written Decision, we additionally expressly construe
“payment data.”
“payment data”
Petitioner asserts that “[f]or review purposes, [payment data] is construed to
mean ‘data representing payment made for requested content data’ and is distinct
from ‘access control data.’” 112 Pet. 17; 113 Pet. 22 (emphasis added). Patent
Owner disagrees, arguing that the term “payment data” should be interpreted to
mean “data that can be used to make payment for content.” PO Resp. 8 (emphasis
added).
Although Petitioner and Patent Owner disagree on the proper broadest
reasonable construction of the term “payment data,” both proposed constructions
incorporate an element of timing. The main dispute between the parties is the
CBM2014-00112
Patent 7,942,317 B2
9
timing of “payment data.” For example, Petitioner argues that the ’317 patent’s
definition of the term “encompasses data relating to either current or past
payment.” Pet. Reply 4. In support, Petitioner refers (id. at 3–4) to the following
disclosure from the ’317 patent Specification:
“[t]he payment data received may either be data relating to an actual
payment made to the data supplier, or it may be a record of a payment
made to an e-payment system . . . .”
Ex. 1001, 6:57–61 (emphasis added).
Patent Owner, on the other hand, argues that the ’317 patent discloses that
“payment data” exists prior to the payment operation, i.e., “used for making a
payment.” PO Resp. 8–9. In support of its argument that “‘payment data’ is used
for making a payment,” Patent Owner refers to the following disclosure from the
Specification
7
: “[P]ayment data for making a payment . . . is received from the
smart Flash card by the content access terminal and forwarded to an e-payment
system.” Id. (citing Ex. 1001, 20:59–62).
We are persuaded that the broadest reasonable interpretation of the term
“payment data,” encompasses both Petitioner’s and Patent Owner’s definitions of
the term. As used in the ’317 patent, “payment data” encompasses data relating to
future, current, and past payments. In other words, we are persuaded that the ’317
patent does not incorporate an element of timing into the definition of payment
data. First, the plain and ordinary meaning of the two words that make up the
term—“payment” and “data”—do not incorporate any notion of time and nothing
about their combination changes that determination.

7
We note that Patent Owner mistakenly refers to the disclosure from the “’221
patent” in at least one instance. PO Resp. 9. We, however, interpret this as a
reference to the ’317 patent.
CBM2014-00112
Patent 7,942,317 B2
10
Second, the ’317 patent specification supports “payment data” representing
data existing prior to, concurrent with, and after payment of the requested content.
For example, the ’317 patent states that “payment data for making a payment to the
system owner is received from the smart Flash card by the content access terminal
and forwarded to an e-payment system.” Ex. 1001, 20:59–62. We agree with
Patent Owner that this language indicates that payment data exists prior to the
payment being made for the requested content. See PO Resp. 8–9. Petitioner does
not address this language. See Pet. Reply 3–4. In addition, we agree with
Petitioner that the language in the ’317 patent, “payment data received may either
be data relating to an actual payment made to the data supplier, or it may be a
record of a payment made to an e-payment system,” (Ex. 1001, 6:57–60) clearly
shows that “payment data,” includes data for payments that have already been
made. See Pet. Reply 3–4.
Moreover, the plain and ordinary meaning of data does not allow for it to
change character based on when it is used in a transaction. For example, a credit
card number is “data relating to payment” before the number is processed, while
the number is being processed, and after the number is processed. See, e.g., Ex.
1015, 232:14–24 (providing credit or debit card information to a retail terminal).
Thus, without an express description to the contrary, we presume that “payment
data” retains the same meaning before, during, and after the payment operation.
Neither party points to any such contrary description.
Indeed, the ’317 patent describes “payment data” in several instances as data
relating to payment for the requested data item. Ex. 1001, 10:5–6, 10:27–28,
10:38–39. Thus, we are persuaded that the broadest reasonable interpretation of
“payment data” as used in the ’317 patent is “data relating to payment for the
requested data item.”
CBM2014-00112
Patent 7,942,317 B2
11
B. Obviousness over Stefik ’235 and Stefik ’980
Petitioner asserts that claims 1, 6–8, 12–14, 16, and 18 would have been
obvious over the Stefik references alone. 112 Pet. 25–77. After considering the
arguments and evidence presented in the Petition and the Preliminary Response
(112, Paper 6), we instituted trial with respect to claims 1, 6–8, 12, 13, 16, and 18
concluding that Petitioner was likely to prevail in showing unpatentability under
35 U.S.C. § 103(a) over the combination of Stefik ’235 and Stefik ’980. Dec. 22.
After considering the arguments and evidence presented during the trial, our
determination remains unchanged.
1. Overview of Stefik ’235 (Ex. 1013)
Stefik ’235 teaches a portable Document Card (“DocuCard”) for storing
information in a digital form, storing usage rights for the information, processing
user-initiated functions and requests to access documents stored therein,
interfacing to external devices for reading and writing digital information, and
allowing a user to directly interact with the DocuCard. Ex. 1013, 2:29–40, 7:35–
42.
2. Overview of Stefik ’980 (Ex. 1014)
Stefik ’980 teaches a “repository” for storing digital works, controlling
access to digital works, billing for access to digital works and maintaining the
security and integrity of the system. Ex. 1014, 6:57–61.
CBM2014-00112
Patent 7,942,317 B2
12
3. Analysis
The parties focus on only certain claim limitations. For the remaining
limitations, we have reviewed Petitioner’s evidence and argument and agree that
Petitioner has shown sufficiently that Stefik
8
teaches these limitations. See 112
Pet. 28–77. We turn now to the disputed limitations.
“payment data”
Claims 8, 12, and 18
Patent Owner contends that claims 8, 12, and 18 would not have been
obvious over Stefik. PO Resp. 14–15. Claim 8 recites “receiving payment data
from the requester relating to payment for the requested data.” Claim 12 recites “a
data access system comprising: a data supply computer system for forwarding data
from a data provider to a data access terminal; . . . wherein data is forwarded from
the data provider to the data carrier on validation of payment data provided from
the data carrier to the electronic payment system.” Claim 18 recites “receiving
payment data from the requester relating to payment for the requested data” and
“outputting payment data to a payment system for distributing the payment for the
requested data.” (emphasis added).
Petitioner contends that Stefik teaches the claimed “payment data” because
Stefik describes “reporting transaction information and fees to a credit server or
billing clearinghouse.” 112 Pet. 71–72, 75. For example, Setfik describes
“generat[ing] billing information for the access which is transmitted to a credit

8
Petitioner refers to Stefik ’235 and Stefik ’980 collectively as “Stefik,”
contending that Stefik ’235 incorporates Stefik ’980 by reference, and providing
rationale for combining the teachings from the two references. 112 Pet. 20–21
n.12; PO Resp. 10–15 (Patent Owner not disputing Petitioner’s contention
regarding “Stefik” being a single reference, or Petitioner’s rationale for combining
the teachings of Stefik ’235 and Stefik ’980). We follow Petitioner’s
nomenclature.
CBM2014-00112
Patent 7,942,317 B2
13
server” (Ex. 1014, 7:33–36) and explains that “[f]or the most part, billing
transactions are well understood in the state of the art” (id. at 29:58–64). 112 Pet.
71–72; Pet. Reply 8. Stefik further describes that “[t]he user on the DocuCard now
uses the user interface to assign payment of any fees associated with the
transaction to be executed” (Ex. 1013, 6:66–7:1) and “[t]his logging in process
may also activate credit accounts” (id. at 6:60–65). 112 Pet. 24, 42–43; Pet. Reply
8. We are persuaded by Petitioner’s position that Stefik teaches “payment data,”
which we construe as “data relating to payment for the requested data item.”
Patent Owner contends that “payment data” is not rendered obvious by
Stefik. PO Resp. 14–15. In support, however, Patent Owner refers to Petitioner’s
contentions regarding the limitation reciting “an electronic payment system for
confirming an electronic payment,” not Petitioner’s contentions regarding
“payment data.” Id. at 14 (citing 112
9
Pet. 55–56). Moreover, Patent Owner
summarily states that Stefik “is still discussing post-usage processing,” and
concludes that because Petitioner has adopted an incorrect interpretation of
“payment data,” the 112 Petition has not shown that “payment data” is rendered
obvious by Stefik. PO Resp. 15. At the hearing, Patent Owner conceded that if we
do not adopt its construction of “payment data” and instead adopt Petitioner’s
construction, it has no remaining argument as to why Stefik does not teach
“payment data.” Tr. 77:10–78:14. We adopt an even broader construction of
“payment data” than that proposed by Petitioner. Our construction of “payment
data” does not including a timing component, and Patent Owner’s argument is
based on the timing of payment data. PO Resp. 14–15. Thus, Patent Owner has
not persuaded us that Stefik does not teach “payment data.”

9
We also note that Patent Owner erroneously refers to the 113 Petition, which
discusses Ginter. PO Resp. 14.
CBM2014-00112
Patent 7,942,317 B2
14
“pointer to a data provider for the data item” and “resource locator identifying a
data provider”
Claims 1, 6, 7, and 16
Patent Owner contends that claims 1, 6, 7, and 16 would not have been
obvious over Stefik. PO Resp. 10–13. Independent claim 1, and thus claims 6 and
7, based on their dependency from claim 1, recite “a data access data store for
storing records of data items available from the system, each record comprising a
data item description and a pointer to a data provider for the data item.” Similarly,
independent claim 16 recites “a data access data store for storing records of data
items available from the system, each record comprising a data item description
and a resource locator identifying a data provider for the data item.”
Stefik discloses that the file information for a “document,” i.e., data, is
comprised of a “‘contents file’ and a ‘description file.’” Ex. 1013, 7:35–36; see
Ex. 1014, 9:21–23. The “contents file” contains the documents, which are stored
on a “DocuCard.” Ex. 1013, 6:10, 7:19–20; see Ex. 1014, 14:37–38. “The
‘contents’ file is a stream of addressable bytes.” Ex. 1013, 6:36–38; see Ex. 1014,
9:23–26. For example, a document is stored starting at a relative address of 0.
Ex. 1013, 7:42–55, Fig. 4; Ex. 1014, 9:34–46, Fig. 5.
Stefik states that the descriptor file contains “a pointer to the document in
the content part.” Ex. 1013, 7:35–58, Fig. 4; see Ex. 1014, 9:21–49, Fig. 5.
Specifically, as Petitioner argues (Pet. Reply 5–7), Stefik teaches that the
description tree [i.e., description file] is comprised of “descriptor blocks (d-
blocks),” wherein “d-block 500 includes an identifier 501” and “a starting address
502 providing the start address of the first byte of the work [i.e., data].” Ex. 1013,
6:2–17, 7:60–67, Fig. 5a; see Ex. 1014, 9:26–27, 9:52–58, Fig. 7; Tr. 37:17–38:2,
39:14–40:8. Identifier 501 is comprised of a “unique number assigned to the
CBM2014-00112
Patent 7,942,317 B2
15
DocuCard [i.e., where data is stored] upon manufacture.” Ex. 1013, 8:4–8; see Ex.
1014, 9:62–65. Stefik further explains that the description file may be stored
independently from the contents file. Ex. 1013, 6:2–17, 7:21–41; see Ex. 1014,
14:28–36, Fig. 12.
With respect to the claimed “pointer” in claim 1 and claimed “resource
locator” in claim 16, Petitioner refers to Stefik’s “d-blocks” in the descriptor file.
112 Pet. 33, 69 (claim chart for claim 16 referring to claim 1). According to
Petitioner, Stefik’s “pointers” (i.e., descriptor blocks) identify the device (i.e., the
data provider) where content is stored, which can be stored separately from the
descriptor file, and the “‘start address of the first byte of work.’” See Pet. Reply 5–
7 (citation omitted); Tr. 29:12–30:17, 31:6–21 (Petitioner contends that the pointer
points to the location of the first bits that make up the data item).
We determine that Petitioner has shown by a preponderance of the evidence
that Stefik teaches the claimed “pointer to a data provider” and “resource locator
identifying a data provider,” as required by claims 1 and 16, respectively. Based
on the disclosures in Stefik, we are persuaded by Petitioner’s contention that a
skilled artisan would understand Stefik’s descriptor blocks as pointing to the
DocuCard (i.e., the data provider or resource locator) where content is stored and
the start address, i.e., location, of the first byte of the data time. See Pet. Reply 5–
7. As such, Stefik’s descriptor blocks, like the pointers described in the ’317
patent, identify a location(s) where a data item can be downloaded. See Ex. 1001,
14:61–65 (data store stores records comprising location data comprising one or
more pointers to a location(s) where the data item can be downloaded).
Patent Owner contends that the various citations referred to by Petitioner do
not satisfy either “pointer” or “resource locator.” Tr. 118:20–119. Patent Owner
acknowledges that Stefik’s descriptor file contains “a pointer to the document in
CBM2014-00112
Patent 7,942,317 B2
16
the content part,” but asserts that “this is a pointer to the content part itself, not the
claimed ‘data provider for the data item’” or “a resource locator identifying a data
provider for the data item.” PO Resp. 12–13 (citing Ex. 1013, 7:35–42). Patent
Owner’s argument is conclusory and not persuasive. Tr. 114:3–118:14; PO
Resp. 12–13. As we discuss above, Stefik’s descriptor blocks include an identifier
comprising a unique number assigned to the DocuCard where the data is stored and
a start address for the location of the first byte of the data. Ex. 1013, 6:2–17, 7:60–
67, Fig. 5a; see Ex. 1014, 9:26–27, 9:52–58, Fig. 7; see Tr. 37:17–38:2, 39:14–
40:8. Furthermore, Patent Owner’s contention that Stefik’s descriptor blocks “are
pointers to other d-blocks in the description file” (PO Resp. 13) is not consistent
with Stefik’s disclosure. See Ex. 1013, 7:60–67; Ex. 1014, 9:52–58.
Accordingly, we are persuaded that Stefik’s descriptor block teaches the
claimed “pointer” and “resource locator” of claims 1 and 16, respectively. For the
same reasons, we determine that Stefik teaches the claimed “pointer” of dependent
claims 6 and 7.
C. Obviousness over Ginter
Petitioner contends that claims 1, 6–8, 12–14, 16, and 18 would have been
obvious over Ginter. 113 Pet. 22, 40–78. After considering the arguments and
evidence presented in the Petition and the Preliminary Response (113, Paper 6), we
instituted trial with respect to claims 1, 6–8, 12, 13, 16, and 18 concluding that
Petitioner was likely to prevail in showing unpatentability under 35 U.S.C.
§ 103(a) over Ginter. Dec. 19, 22. After considering the arguments and evidence
presented during the trial, our determination remains unchanged.
CBM2014-00112
Patent 7,942,317 B2
17
1. Overview of Ginter (Ex. 1015)
Ginter discloses a portable “virtual distribution environment” that can
“control and/or meter or otherwise monitor use of electronically stored or
disseminated information.” Ex. 1015, Abstract, Fig. 71, 52:26–27.
2. Analysis
The parties focus on only one claim limitation. For the remaining
limitations, we have reviewed Petitioner’s evidence and argument and agree that
Petitioner has shown sufficiently that Ginter teaches these limitations. See 113 Pet.
40–78. We turn now to the disputed limitation.
“payment data”
Patent Owner contends that claims 1, 6–8, 12, 13, 16, and 18 would not have
been obvious over Ginter. PO Resp. 16–20. Each of these claims recites “payment
data,” either explicitly or implicitly based on the dependency of the claim. For
example, claim 1 recites “code to receive from the communications interface
payment data comprising data relating to payment for the requested data item” and
“code responsive to the request [for a data item] and to the received payment data,
to read data for the requested data item from a content provider.” As noted above,
we construe “payment data” as “data relating to payment for the requested data
item.”
In its Petition, Petitioner refers to Ginter’s disclosure of “audit information”
and “real-time debits from bank accounts” as teaching the claimed “payment data.”
See e.g., 113 Pet. 44–45 n.16 (citing Ex. 1015, 63:34–41), 54, 73. Petitioner
further contends that to the extent Ginter’s audit information does not relate to
payment for a currently-requested content object, Ginter renders this obvious. 113
Pet. 45 n.16. In support, Petitioner refers to Ginter’s disclosure of paying for
content with “real-time debits from bank accounts” and argues that a skilled artisan
CBM2014-00112
Patent 7,942,317 B2
18
would have found it “obvious to apply Ginter’s teaching of using audit information
as payment data to a real-time transaction in order to reflect payment for a
currently–requested [content].” Pet. 45 n.16 (citing Ex. 1015, 63:34–41); Tr.
16:24–17:4.
In its Response, Patent Owner argues that “audit information is for tracking
post-usage information, not current purchase information.” PO Resp. 19. In
support, Patent Owner refers to Ginter’s disclosure that “‘the clearinghouse may
analyze the contained audit information to determine whether it indicates misuse of
the applicable [content],’” which Patent Owner argues indicates that the tracked
usage has already occurred. Id. (citing Ex. 1015, cols. 161 and 162). Patent
Owner also contends that changing “from post-usage tracking to pre-purchase
processing would change the principle upon which Ginter works, which indicates
nonobviousness.” Id. (citation omitted); Tr. 82:18–23, 84:1–5, 85:23–87:3.
Patent Owner’s responsive arguments do not dispute that the audit
information is “data representing payment for . . . requested content data,” which is
the basis for Petitioner’s contentions. See e.g., 113 Pet. 44–45 n.16 (citing Ex.
1015, 63:34–41), 54, 73. Patent Owner’s arguments are focused solely on the
timing of the audit information (i.e., the timing of usage in relation to when
payment is made) in Ginter. See PO Resp. 18–20 (“in the context of Ginter, the
audit information is for tracking post-usage information, not current purchase
information”).
Moreover, in its Reply, Petitioner refers to Ginter’s disclosure of
“‘prepayments, credits, [and] real-time debits’” and argues that Ginter expressly
teaches that “payment is made before content access or usage is allowed.” Pet.
Reply 13 (citing Ex. 1015, 63:34–41); see also Pet. Reply 14–15 (citing Ex. 1015,
Fig. 44A, 44B, 179:27–36, 179:57–60, 270:19–22, 270:33–36, 281:37–39).
CBM2014-00112
Patent 7,942,317 B2
19
We determine that Petitioner has shown by a preponderance of the evidence
that Ginter teaches the claimed “payment data.” As Petitioner argues
(Pet. Reply 13), Ginter, for example, teaches processes that include “governing
usage of, auditing of, and where appropriate, payment for [content] (through the
use of prepayments, credits, real-time electronic debits from bank accounts and/or
[other deposit accounts]).” Ex.1015, 63:34–41 (emphasis added). At the hearing,
Petitioner argued that these disclosures teach “payment before the transaction
occurs.” Tr. 16:6–16. Patent Owner argues that Ginter’s “prepayments” and “real-
time electronic debits” are not for a particular object “as it is being requested,” but
rather is payment “for content at some future time when [content] has actually been
selected and the budget has been used and the metering has occurred.” Tr. 79:13–
80:19, 81:19–21 (“it is not an indication, even if it says real-time, that it is real-
time for use of the [content] that is being requested.”); PO Resp. 19 (arguing that
that to the extent Ginter discloses real-time debits from bank accounts, it teaches
“paying for previous usage of [content]”) (citation omitted). Patent Owner’s
arguments are unavailing.
Foremost, Ginter’s teaching does not restrict the timing of the
“prepayments” and “real-time electronic debits” in relation to the request for
and/or usage of the content, and Patent Owner has not persuaded us otherwise. See
Ex. 1031, 94:4–13; Ex. 1031, 119:18–21, 121:2–6 (Dr. Katz’s deposition
testimony is unpersuasive); Pet. Reply 19–20. In any event, “payment data” does
not require any specific timing, either in relation to the payment operation or the
access to data. As noted above, we construe “payment data” as “data relating to
payment for a requested data item.” Thus, even assuming Ginter teaches making
prepayments and real-time electronic debits before a request for or usage of
content is made, prepayments and real-time electronic debits remain data relating
CBM2014-00112
Patent 7,942,317 B2
20
to payment. Although the claimed “payment data” is “data relating to payment for
the requested data item,” the data relating to payment does not change character in
relation to when a request for a data item is made. In other words, even assuming
the disclosure relied upon by Petitioner teaches a prepaid system, as urged by
Patent Owner, wherein a user makes a prepayment before a request for a data is
made, the data is still “payment data” when the request for the data item is
subsequently made.
In addition, we are persuaded by Petitioner’s argument that it would have
been obvious to apply Ginter’s teaching of using audit information as payment data
to a real-time transaction in order to reflect payment for currently–requested
content. See Pet. 45 n.16 (citing Ex. 1015, 63:34–41). Assuming the challenged
claims require “payment data” to be received before access to content is allowed,
we are persuaded that it would have been obvious to a skilled artisan to have
applied Ginter’s teaching of using audit information as payment data before access
to content is allowed. See Ex. 1001, 26:1–8 (claim 1 requires “code responsive to
the request [for content] and to the received payment data, to read data for the
requested data item … and to transmit the read data to the requester”) (emphasis
added). As Petitioner argues, Ginter teaches that audit information includes “an
electronic funds transfer against the user’s bank account or some other bank
account” (Ex. 1015, 179:57–60) and “collecting payments, etc.” (id. at 281:33–
39).
10
Pet. Reply 14–15. Furthermore, as we discuss above, Ginter’s teaching does
not restrict the timing of the “prepayments” and “real-time electronic debits” in

10
We are not persuaded that Petitioner introduced new argument, as asserted by
Patent Owner. See Tr. 91:2–94:24. In response to Patent Owner’s argument that
Ginter’s “audit information” is post-usage information (id. at 91:20–22; PO Resp.
18–19), Petitioner explicated upon its argument by referring to specific audit
information (Pet. Reply 14–15).
CBM2014-00112
Patent 7,942,317 B2
21
relation to the request for and/or usage of the content. Thus, based on this
disclosure, we are persuaded that it would have been obvious to a skilled artisan to
have modified Ginter’s audit information to be “payment data” at any time in
relation to the request for and/or usage of the content.
Patent Owner argues that a skilled artisan would not have made the
modification proposed by Petitioner because at the heart of the Ginter system is “a
post-usage metering system” wherein payment is made for post-usage of the
content and not a prepayment before content is downloaded. Tr. 82:19–21, 85:23–
86:16, 87:1–3. Indeed, Patent Owner argues that all of the embodiments disclosed
in Ginter are “post-usage systems” and “the principle of Ginter would be altered in
order to be able to try to achieve the goal of utilizing realtime transactions as a
prepayment as opposed to a post payment.” Id. at 85:23–86:16. Patent Owner’s
argument is unavailing because Patent Owner has not sufficiently persuaded us that
all the embodiments in Ginter are related to “post-usage systems.” As discussed
above, Ginter’s disclosure does not restrict the timing of “prepayments” and “real-
time electronic debits,” which Patent Owner acknowledges is “used to make
payments later in the future.” Id. at 80:16–18.
Accordingly, we conclude that Petitioner has shown by a preponderance of
the evidence that claims 1, 6–8, 12, 13, 16, and 18 of the ’317 patent would have
been obvious over Ginter.
IV. MOTIONS TO EXCLUDE
A. Petitioner’s Motion to Exclude
Petitioner filed a Motion to Exclude (Paper 35), Patent Owner filed an
Opposition to Petitioner’s motion (Paper 41), and Petitioner filed a Reply in
support of its motion (Paper 46). Petitioner’s Motion to Exclude seeks to exclude:
(1) the testimony of Dr. Katz (Ex. 2031); and (2) the portions of the Patent
CBM2014-00112
Patent 7,942,317 B2
22
Owner’s Response (Paper 22) that refer to, or rely on, that testimony. Paper 35, 3.
As movant, Petitioner has the burden of proof to establish that it is entitled to the
requested relief. See 37 C.F.R. § 42.20(c). For the reasons stated below,
Petitioner’s Motion to Exclude is denied.
Petitioner argues that Dr. Katz’s testimony should be excluded under Federal
Rule of Evidence (“FRE”) 702 because he was unable to opine on what a person of
ordinary skill in the art would have understood as of the priority date of the ’317
patent. Paper 37, 4–5. Specifically, Petitioner refers to Dr. Katz’s deposition
testimony that he was “not sure” as to (1) what a person of ordinary skill in the art
would have known; (2) the operation of the embodiments described in the ’317
patent; and (3) how a person of ordinary skill in the art would have interpreted
various passages from the cited prior art. Id. at 5–9.
Patent Owner counters that Dr. Katz was not sure how to answer the
questions in deposition because “Petitioner never established whose definition of a
POSITA Dr. Katz was to use.” Paper 41, 4.
Petitioner replies that Dr. Katz confirmed at the outset of his deposition that
he understood the meaning of counsel’s reference to “what a person of ordinary
skill in the art would have understood,” and that Patent Owner’s counsel objected
to almost none of the questions that it now claims are unclear. Paper 46, 2–4
(citation omitted).
We have reviewed the deposition testimony of Dr. Katz and determine that
excluding the testimony, in its entirety, is not warranted. We assess Petitioner’s
arguments with respect to the weight to be given to relevant portions of Dr.Katz’s
testimony, rather than to its admissibility. 37 C.F.R. § 42.65.
CBM2014-00112
Patent 7,942,317 B2
23
B. Patent Owner’s Motion to Exclude
Patent Owner filed a Motion to Exclude (Paper 38), Petitioner filed an
Opposition to Patent Owner’s motion (Paper 42), and Patent Owner filed a Reply
in support of its motion (Paper 45). Patent Owner’s Motion to Exclude seeks to
exclude (1) Exhibit 1002; (2) Exhibits 1004, 1005, 1008, 1009, 1019, 1027–1029;
(3) Exhibits 1006, 1007, 1009, 1012, 1017, and 1020; (4) Exhibits 1016 and 1018;
(5) Exhibits 1021 and 1121; (6) portions of Exhibit 1031; and (7) Exhibits 1101–
1120 and 1122–1129. Paper 38, 1. As movant, Patent Owner has the burden of
proof to establish that it is entitled to the requested relief. See 37 C.F.R.
§ 42.20(c). For the reasons stated below, Patent Owner’s Motion to Exclude is
granted-in-part, denied-in-part and dismissed--in-part as moot.
Exhibit 1002
Patent Owner seeks to exclude Exhibit 1002—the First Amended Complaint
filed by it in the co-pending litigation—as inadmissible other evidence of the
content of a writing (FRE 1004), irrelevant (FRE 401), and cumulative (FRE 403).
Paper 38, 2–3; Paper 45, 1–2. Specifically, Patent Owner argues that Petitioner
does not need to cite Patent Owner’s characterization of the ’317 patent in the
complaint because the ’317 patent itself is in evidence. Paper 38, 2. Moreover,
according to Patent Owner, its characterization of the ’317 patent is irrelevant and,
even if relevant, cumulative to the ’317 patent itself. Id. at 3.
Petitioner counters that it relies on Exhibit 1002 not as evidence of the
content of the ’317 patent, but to show that Patent Owner’s characterization of the
’317 patent supports Petitioner’s contention that the ’317 patent is a covered
business method patent. Paper 42, 2. Thus, according to Petitioner, it is highly
relevant to the issue of whether the ’317 patent is a covered business method
patent. Id. Moreover, contends Petitioner, Patent Owner’s characterization of the
CBM2014-00112
Patent 7,942,317 B2
24
’317 patent in another proceeding is not in the ’317 patent itself, and, therefore,
Exhibit 1002 is not cumulative to the ’317 patent and FRE 1004 is not applicable.
Id.
We are persuaded by Petitioner that Exhibit 1002 is offered not for the truth
of the matter asserted (i.e., the content of the ’317 patent), but as evidence of how
the Patent Owner has characterized the ’317 patent. Patent Owner has not
persuaded us that Exhibit 1002 is irrelevant, at least because its characterization of
the ’317 patent in prior proceedings are relevant to the credibility of its
characterization of the ’317 patent in this proceeding. Accordingly, we decline to
exclude this exhibit.
Exhibits 1004, 1005, 1009, 1019, and 1027–1029
Patent Owner seeks to exclude Exhibits 1004, 1005, 1009, 1019, and 1027–
1029 as irrelevant under FRE 401 and 402 because they are not cited in the
Petition, the Wechselberger Declaration, or our Decision to Institute. Paper 38, 3–
4; Paper 45, 2.
Petitioner counters that all of these exhibits, except Exhibit Ex. 1009 (Paper
42, 3 n.4), were cited in the Wechselberger Declaration as “Materials Reviewed
and Relied Upon.” Paper 42, 3. Petitioner also points out that Patent Owner
similarly filed exhibits not relied upon in its substantive papers. Id.
Because Mr. Wechselberger attests that he reviewed these exhibits in
reaching the opinions he expressed in this case, Patent Owner has not shown that
they are irrelevant under FRE 401 and 402. Accordingly, we decline to exclude
these exhibits. We grant the motion as to Exhibit 1009.
Exhibits 1006–1008, 1012, 1016–1018, and 1020
Patent Owner seeks to exclude Exhibits 1006–1008, 1012,1016– 1018, and
1020 as irrelevant under FRE 401 and 402 because, while cited, they either were
CBM2014-00112
Patent 7,942,317 B2
25
not asserted by Petitioner as invalidating prior art or were not instituted upon by
the Board. Paper 38, 4–5; Paper 45, 2–3.
Petitioner counters that all of these exhibits are evidence of the state of the
art and knowledge of a person of ordinary skill in the art at the claimed priority
date, and are relied upon in both the Petition and the Wechselberger Declaration as
evidence of that knowledge. Paper 42, 3–5.
Because these exhibits are evidence relied upon by Petitioner to support its
assertions with respect to the state of the art and to knowledge of a person of
ordinary skill in the art, which are relevant to obviousness, we are not persuaded
that they are irrelevant under FRE 401 and 402. Accordingly, we decline to
exclude these exhibits.
Exhibits 1021 and 1121
Patent Owner seeks to exclude Exhibits 1021 and 1121—the Declarations of
Mr. Wechselberger in the 112 case and 113 case, respectively—under FRE 602 as
lacking foundation because they “do[] not state the relative evidentiary weight
(e.g., substantial evidence versus preponderance of the evidence) used in arriving
at his conclusions” and because they “do[] not sufficiently state the criteria used to
assess whether one of ordinary skill in the art at the time of the invention would
have been motivated to modify a reference or combine two references.” Paper 38,
5–9, 14–15; Paper 45, 3–4. Patent Owner also seeks to exclude this testimony
under FRE 702 because it “does not prove that Mr. Wechselberger is an expert
whose testimony is relevant to the issue of what is taught and/or suggested by the
cited references.” Paper 38, 8, 14–15; Paper 47, 3–4.
Petitioner counters that FRE 602 is not a basis for excluding Mr.
Wechselberger’s expert testimony because FRE 602 plainly states that it “does not
apply to a witness’s expert testimony under Rule 703” and, therefore, Patent
CBM2014-00112
Patent 7,942,317 B2
26
Owner’s objections are improper challenges to the sufficiency of the opinions
presented rather than challenges to their admissibility. Paper 42, 5–6. Petitioner
also argues that experts are not required to recite the “preponderance of the
evidence” standard expressly. Id. at 7 (citing IPR2013-00172, Paper 50 at 42).
With respect to FRE 702, Petitioner notes that Patent Owner offers no evidence
disputing that Mr. Wechselberger is a qualified expert and notes that he qualifies as
an expert under both parties’ definitions of a person of ordinary skill in the art. Id.
at 7. Petitioner also notes that Patent Owner did not object to its offer of
Mr. Wechselberger as an expert in the co-pending district court litigation. Id.
Patent Owner acknowledges that FRE 602 does not apply to expert
witnesses, but argues that Mr. Wechselberger never states that he is an expert in
the subject matter of the challenged claims. Paper 45, 3 n.2.
We are not persuaded by Patent Owner’s arguments. Mr. Wechselberger has
a Bachelor and Master in Electrical Engineering, and has decades of experience in
relevant technologies. Ex. 1021, ¶¶ 2–12, App’x A. We are, therefore, not
persuaded by Patent Owner’s argument that he has not provided sufficient proof
that he is an expert. And as Petitioner correctly points out, an expert is not
required to recite the “preponderance of the evidence” standard expressly in order
for the expert testimony to be accorded weight, much less admissibility.
Moreover, FRE 602 expressly recites that it “does not apply to a witness’s expert
testimony under Rule 703.” The testimony sought to be excluded by Patent Owner
is expert testimony under Rule 703. Accordingly, we decline to exclude this
testimony under either FRE 602 or FRE 702.
Exhibit 1031
Patent Owner seeks to exclude portions of Exhibit 1031 on the grounds that
the questions asked were outside the scope of Dr. Katz’s declaration, and,
CBM2014-00112
Patent 7,942,317 B2
27
therefore, should be excluded for not being in compliance with 37 C.F.R.
42.53(d)(5)(ii). Paper 38, 9–13; Paper 45, 4–5.
Petitioner counters that Patent Owner cannot move to exclude this testimony
because it failed to object to the questions during the deposition and therefore
waived any such objection under Rule 42.64(a). Paper 42, 8 (citing Westlake
Servs., LLC v. Credit Acceptance Corp., CBM2014-00008, Paper 48 (“Patent
Owner objected to many, but not all, … questions . . . , indicating its belief that at
least some of the questioning was proper.”). Petitioner further contends that the
testimony is relevant to issues in this proceeding. Paper 42, 8–15.
Patent Owner replies that, unlike CBM2014-00008, it seeks to exclude only
discrete portions of the deposition testimony, and that “[a] fair reading of the
record demonstrates that Patent Owner’s objections were made and preserved at
the deposition.” Paper 45, 4.
As an initial matter, a motion to exclude is not a proper vehicle for a party to
raise the issue of cross-examination exceeding the scope of the direct testimony.
Moreover, as Petitioner correctly points out, many of the questions and answers
that Patent Owner now seeks to exclude were not objected to during the deposition,
even giving the transcript the “fair reading” that Patent Owner suggests. “An
objection to the admissibility of deposition evidence must be made during the
deposition.” 37 C.F.R. § 42.64(a).
Nevertheless, we turn to the merits. Even assuming that exceeding the scope
of direct testimony was a proper basis for a Motion to Exclude and that Patent
Owner had objected to every question now sought to be excluded, we still would
not be persuaded that exclusion of this testimony, in its entirety, is the proper
remedy. Based on our review of the arguments made in the Patent Owner
Response, as well as the relevant portions of the deposition transcript, we are not
CBM2014-00112
Patent 7,942,317 B2
28
persuaded that the questions asked were outside the scope of Dr. Katz’s
declaration. For example, Patent Owner argues that the testimony at page 36, line
10 to page 37, line 11 is “not relevant because it relates to conditional access and
none of the claims at issue relate to conditional access to stored data.” Paper 38, 9.
However, as Petitioner points out, the challenged claims recite “‘code responsive
to the request and to the received payment data’ to read data from a data provider
(claim 1) or output the item data to the requester (claim 16), and the prior art
disclosed minimizing unauthorized content use to ensure content owners are paid.”
Paper 42, 9 (citations omitted). Moreover, Dr. Katz asserts that he “would qualify
as an expert in the area of data storage and access systems such that I am qualified
to opine on what those of ordinary skill in the art would have understood at the
time of the filing of the patent and what he/she would or would not have been
motivated to do.” Ex. 2031 ¶ 10 (emphasis added). As a result, we are not
persuaded that questions about what a person of ordinary skill in the art would
know about conditional access are outside the scope of Dr. Katz’s direct testimony.
Patent Owner emphasizes that Petitioner “does not rebut that this testimony
is irrelevant given that it relates to claims (conditional access to stored data) and
terms (‘payment validation’ not ‘payment validation data’) outside the scope of the
proceeding as instituted.” Paper 45, 4. The deposition of Dr. Katz covered his
testimony in four related proceedings involving four different patents: CBM2014-
00102 (Patent 8,118,221 B2), CBM2014-00106 (Patent 8,033,458 B2), CBM2014-
00108 (Patent 8,061,598 B2), and CBM2014-00112 (Patent 7,942,317 B2).
Ex. 1031, 1. Patent Owner would have us exclude testimony in this proceeding
because the question posed used claim terms at issue only in the related
proceedings. It would be overly burdensome, however, to require counsel to ask
the same question four different times using claim language unique to a particular
CBM2014-00112
Patent 7,942,317 B2
29
patent each time. Although some of the questions posed may have used terms or
phrases not recited explicitly in the instituted claims of the ’317 patent, we are not
persuaded that the use of such a term or phrase renders the answer elicited
irrelevant to the issues in this proceeding. With respect to questions regarding
conditional access at page 36, line 10 to page 37, line 11, for example, we agree
with Petitioner that this testimony is relevant both to aspects of the prior art relied
upon by Petitioner and to the operation of embodiments described in the ’317
patent. Accordingly, we decline to exclude these portions of Exhibit 1031.
Exhibits 1101–1120 and 1122–1129
Patent Owner seeks to exclude Exhibits 1101–1120 and 1122–1129 (filed in
the 113 case) under FRE 403 on the grounds that they are identical to Exhibits
1001–1020 and 1022–1029 (filed in the 112 case), and are therefore “needless
cumulative evidence.” Paper 38, 13–14; Paper 47, 5.
Petitioner counters that these exhibits should not be excluded for the same
reasons that Exhibits 1001–1020 and 1002–1029 should not be excluded. Paper
42, 2 n.3.
We do not rely on these exhibits. Accordingly, Patent Owner’s Motion to
Exclude is moot as to these exhibits.
V. CONCLUSION
Petitioner has shown by a preponderance of the evidence that claims 1, 6–8,
12, 13, 16, and 18 of the ’317 patent are unpatentable under 35 U.S.C. § 103.
VI. ORDER
Accordingly, it is:
ORDERED that claims 1, 6–8, 12, 13, 16, and 18 of the ’317 patent are
determined to be unpatentable;
FURTHER ORDERED that Petitioner’s motion to exclude is denied;
CBM2014-00112
Patent 7,942,317 B2
30
FURTHER ORDERED that Patent Owner’s motion to exclude is denied-in-
part and dismissed-in-part;
FURTHER ORDERED that Exhibit 1009 shall be expunged; and
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.

CBM2014-00112
Patent 7,942,317 B2
31
PETITIONER:

J. Steven Baughman
Ching-Lee Fukuda
Megan Raymond
ROPES & GRAY LLP
steven.baughman@ropesgray.com
ching-lee.fukuda@ropesgray.com
megan.raymond@ropesgray.com

PATENT OWNER:

Michael R. Casey
J. Scott Davidson
DAVIDSON BERQUIST JACKSON & GOWDEY LLP
mcasey@dbjg.com
jsd@dbjg.com