Jack Henry and Associates, Inc.v.DataTreasury Corporation

Patent Trial and Appeal Board

Jul 8, 2015

09081012 (P.T.A.B. Jul. 8, 2015)

Trials@uspto.gov Paper 37
Tel: 571–272–7822 Entered: July 8, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
JACK HENRY and ASSOCIATES, INC.,
Petitioner,

v.

DATATREASURY CORP.,
Patent Owner.
____________

CBM2014-00056
Patent 6,032,137 C1
____________

Before MICHAEL P. TIERNEY, WILLIAM V. SAINDON, and
MATTHEW R. CLEMENTS, Administrative Patent Judges.

SAINDON, Administrative Patent Judge.

DECISION
Final Written Decision
35 U.S.C. § 328(a) and 37 C.F.R. § 42.73

Denying Patent Owner’s Motion to Exclude
37 C.F.R. § 42.64(c)

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I. INTRODUCTION
We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is entered pursuant to 35 U.S.C. § 328(a) and 37 C.F.R. § 42.73.
With respect to the grounds asserted in this trial, we have considered
the papers submitted by the parties and the evidence cited therein. For the
reasons discussed below, we determine that Petitioner has shown by a
preponderance of the evidence that claims 42 and 43 of U.S. Patent No.
6,032,137 C1 (Ex. 1001, “the ’137 patent”) are unpatentable. In addition,
for the reasons discussed below, we deny Patent Owner’s Motion to
Exclude.
A. Procedural History
Petitioner filed a corrected petition (Paper 4, “Pet.”) requesting a
covered business method patent review of claims 1, 2, 16, 18, 26, 27, 29, 36,
38, 42, and 43 of the ’137 patent under 35 U.S.C. §§ 102 and 103. Pet. 16–
17, 22–78. Patent Owner filed a preliminary response. Paper 9. Reviewing
the arguments and evidence then before us, we issued a Decision Instituting
Covered Business Method Review (Paper 17, “Dec. Inst.”), instituting
review on claims 42 and 43 only. Dec. Inst. 15.
Patent Owner subsequently filed a Response to the Petition (Paper 21,
“PO Resp.”), to which Petitioner filed a Reply (Paper 22, “Pet. Reply”)
including the testimony of William R. Michalson, Ph.D (Ex. 1023). Upon
the request of the parties, an Oral Hearing was held. See Paper 36 (transcript
of the Hearing, cited as “Tr.”).
Patent Owner filed a Motion to Exclude certain evidence. Paper 26
(“PO Mot. Excl.”). Petitioner filed an opposition to that motion (Paper 27,
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“Pet. Opp. Mot. Excl.”), to which Patent Owner filed a reply (Paper 33, “PO
Reply Mot. Excl.”).
B. Related Matters
Petitioner indicates that the ’137 patent is asserted in a district court
action titled DataTreasury Corp. v. Jack Henry & Assoc., Inc., No.
2:13-cv-00433 (E.D. Tex). Pet. 15 (citing Ex. 1020). Petitioner also
identifies a number of other district court proceedings involving the ’137
patent. Id. The ’137 patent is the subject of a number of proceedings before
this Board, including Fidelity National Information Services, Inc. v.
DataTreasury Corp., Case CBM2014-00020 (PTAB) (“Fidelity CBM”)
1
and
Fiserv, Inc. v. DataTreasury Corp, Case CBM2014-00088 (PTAB).
2
Paper
7; Paper 8; Paper 35.
C. The ’137 Patent
The ’137 patent is directed to a system for remote data acquisition,
and centralized processing and storage of the acquired data. Ex. 1001,
Abstract. An object of the invention is to provide an automated system to
manage and store captured electronic and paper transactions from various
activities including banking and consumer applications. Id. at 3:22–26.

1
In the Fidelity CBM proceeding, a final written decision was issued on
April 29, 2015 determining claims 1–67 of the ’137 patent to be
unpatentable under 35 U.S.C. §§ 101 and 112, first paragraph.
2
In CBM2014-00088, we instituted a covered business method review of
claims 1, 2, 9, 16, 18, 19, 22, 25, 26, 29, 36, 38–43, 48, 50, 51, 54, 55, 60,
62, 63, and 66 of the ’137 patent as anticipated by Campbell under 35 U.S.C.
§ 102. Paper 6. We have yet to issue a final written decision in that
proceeding.
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Generally, the ’137 patent describes scanning documents using a scanner
attached to a general purpose network computer that is connected via a
carrier cloud to a server that inserts images and data received into a
database. Id. at Figs. 1–2, 3:37–58, 4:65–5:15, 5:45–51, 16:53–60.
Additionally, the general purpose network computer encrypts the images and
data to provide a system with maximal security. Id. at 3:30–36, 7:38–46,
8:10–15.
Figure 1 of the ’137 patent, provided below, depicts a preferred
embodiment of the system having three major operational elements:

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The ’137 patent describes the tiered arrangement depicted in Figure 1
as follows:
FIG. 1 shows the architecture of the
DataTreasuryâ„¢ System 100. The DataTreasuryâ„¢
System 100 has three operational elements: the
DataTreasuryâ„¢ System Access Terminal (DAT)
200 (the remote data access subsystem), the
DataTreasuryâ„¢ System Access Collector (DAC)
400 (the intermediate data collecting subsystem),
and the DataTreasuryâ„¢ System Processing
Concentrator (DPC) 600 (the central data
processing subsystem).
Id. at 4:66–5:6.
Figure 2 of the ’137 patent, provided below, depicts a block diagram
of the DAT:

As shown in Figure 2, scanner 202 is connected to workstation 210,
which is connected to data system access collector 400. The workstation can
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be a general purpose computer and performs tasks including compressing,
encrypting, and tagging a scanned bitmapped image. Id. at 5:40–45, 7:31–
35.
D. Illustrative Claims
Both challenged claims, claims 42 and 43, are independent. They are
reproduced below.
42. A system for central management, storage and report
generation of remotely captured paper transactions from
checks comprising:
one or more remote data access subsystems for
capturing and sending paper transaction data and
verifying transaction data from the checks comprising at
least one imaging subsystem for capturing the checks and
at least one data access controller for managing the
capturing and sending of the transaction data;
at least one central data processing subsystem
for processing, sending, verifying and storing the paper
transaction data and the subsystem identification
information comprising a management subsystem for
managing the processing, sending and storing of the []
transaction data; and
at least one communication network for the
transmission of the transaction data within and between
said one or more data access subsystems and said at least
one data processing subsystem, with the data access
subsystem providing encrypted subsystem identification
information and encrypted paper transaction data to the
data processing subsystem.

43. A method for central management, storage and
verification of remotely captured paper transactions from
checks comprising the steps of:
capturing an image of the check at one or more
remote locations sending a captured image of the check;
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managing the capturing and sending of the
transaction data;
collecting, processing, sending and storing the
transaction data at a central location;
managing the collecting, processing, sending
and storing of the transaction data;
encrypting subsystem identification information
and the transaction data; and
transmitting the transaction data and the
subsystem identification information within and between
the remote location(s) and the central location.

E. Asserted Grounds and Prior Art
A covered business method patent review of claims 42 and 43 of the
’137 patent was instituted on the ground of anticipation by U.S. Patent No.
5,373,550, issued Dec. 13, 1994 to Campbell (Ex. 1012).
II. ANALYSIS
A. The ’137 Patent is a Covered Business Method Patent
Patent Owner argues that the ’137 patent is not eligible for covered
business method patent review because one or more of its claims are
directed to a technological invention. PO Resp. 9–15. We have discussed
whether the ’137 patent is eligible for covered business method patent
review at length in our Decision to Institute and Final Written Decision in
the Fidelity CBM. See Fidelity CBM, Paper 13, 9–13; Fidelity CBM, Paper
34, 8–9. For the same reasons as those we expressed in the Fidelity CBM,
we hold that the ’137 patent is eligible for covered business method patent
review.
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B. Claim Construction
We interpret the claims of an unexpired patent using the broadest
reasonable interpretation in light of the specification of the patent. 37 C.F.R.
§ 42.100(b); In re Cuozzo Speed Techs., LLC, 778 F.3d 1271, 1281–82 (Fed.
Cir. 2015). Under the broadest reasonable interpretation standard, claim
terms are given their ordinary and customary meaning, as would be
understood by one of ordinary skill in the art, in the context of the entire
disclosure. In re Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed. Cir.
2007). Any special definition for a claim term must be set forth with
reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
1475, 1480 (Fed. Cir. 1994).
In our Decision instituting this trial, we determined the broadest
reasonable interpretation of “subsystem identification information” is
“information that identifies a subsystem.” Dec. Inst. 9–10. We noted that
this interpretation did not limit the information to identify any particular
subsystem (e.g., it could identify the remote subsystem, the central
subsystem, etc.). Id. at 9.
Patent Owner does not challenge directly this interpretation, although
it does make some arguments that imply that it disagrees with some aspects
of the construction. For example, Patent Owner takes issue with our
statement, reiterated above, that our interpretation does not limit the
subsystem identification information (“SSID”) to any particular subsystem.
See, e.g., PO Resp. 29–31. Patent Owner, however, simply misunderstands
our statement. That the SSID is not limited to any particular subsystem
means that the SSID could identify a remote subsystem, a central subsystem,
or any other type of subsystem—the claims do not require the SSID identify,
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for example, only a remote subsystem. The SSID could identify any type of
subsystem. Patent Owner points to several columns in the ’137 patent where
it believes an SSID is described, specifically identifying
DAT_TERMINAL_ID. Id. at 31 (citing Ex. 1001, 7:59–9:16, Fig. 3a).
Patent Owner provides no further analysis.
Figure 3a discloses an unencrypted tag that includes “a time stamp
. . ., an identification number to identify the merchant originating the scan
and any additional useful information.” Ex. 1001, 8:21–24 (emphasis
added). The DAT_TERMINAL_ID, which is part of the unencrypted tag,
“uniquely identifies the DAT 200 which is used by the customer.” Id. at
10:40–46. The DAT 200, also known as the remote data access terminal (id.
at 5:1–2) is shown in Figure 2 and is a collection of components found at the
merchant (e.g., bank). Id. at 5:32–44. Thus, in this particular example, the
SSID (which is not encrypted) identifies the remote data access terminal, for
example, the subsystem that scans and sends images at a bank. Nothing
about the term “subsystem identification information,” as set forth in the
claims or specification, indicates that only remote data access subsystems
can have an SSID; this is merely an example. Accordingly, we construed
SSID in a manner that encompassed a preferred embodiment but, because
the specification provided no indication that the term should be read more
narrowly, we did not limit SSID to the particular embodiment identified by
Patent Owner. See Superguide Corp. v. DirecTV Enter., Inc., 358 F.3d 870,
875 (Fed. Cir. 2004) (a particular embodiment appearing in the written
description may not be read into a claim when the claim language is broader
than the embodiment.); In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004)
(“Absent claim language carrying a narrow meaning, the PTO should only
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limit the claim based on the specification or prosecution history when those
sources expressly disclaim the broader definition.”).
Patent Owner also argues in its Response that the word “subsystem”
implies some degree of common ownership among the subsystems. See,
e.g., PO Resp. 20 (arguing that “neither the Sending Bank nor the Receiving
Bank [in Campbell] is part of a system or subsystem of the other bank.”); id.
at 23 (“Campbell does not state that the two banks . . . are banks that belong
to the same banking/financial company”); Pet. Reply 6–7 (responding to
Patent Owner’s common ownership argument; alleging that Patent Owner
made claim construction arguments in District Court to the contrary); see
also Ex. 1024, 3 (containing Patent Owner’s infringement contention).
Upon questioning, Patent Owner withdrew this argument in Oral Hearing:
[Patent Owner’s Counsel]: I’m told that it is not
necessarily commonly owned. However, the
portions have to work together and enable the
result that is warranted by the claims.
So a first step might be owned by one party but the
remaining steps can be owned by another party or
function by using another party, but they have to
function together in order to achieve the result
that’s in this claim.
Tr. 50:14–20. We agree that nothing in the claims, as would be understood
by a person of ordinary skill in the art in view of the specification, requires
any form of ownership or other type of corporate relationship between the
various subsystems; only that they function in the manner set forth in the
claims. Indeed, the ordinary meaning of “system” involves something
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organized around function, not ownership.
3
A subsystem is merely a sub-
component of a system.
4

In view of the above, we retain our initial construction of “subsystem
identification information” as “information that identifies a subsystem.”
C. Patent Owner’s Motion to Exclude
Patent Owner moves to exclude Exhibit 1023 (Michalson Affidavit),
Paper 23 (Revised Exhibit List), and Paper 22 (Petitioner’s Reply). PO Mot.
Excl. 2.
Patent Owner objects to Exhibit 1023 because it contains sub-exhibits
and because it allegedly “raises new grounds and issues that go beyond the
scope of Patent Owner’s Response to Petition.” Id. at 2–4. We have
reviewed these objections and determine that Patent Owner has failed to
identify a persuasive reason why Exhibit 1023 should be excluded.
Regarding Petitioner’s improper use of sub-exhibits within an exhibit,
we note that, although parties are not permitted to file combined documents
as Petitioner has done in Exhibit 1023, see 37 C.F.R. § 42.6(a)(3), exclusion
would be too extreme a remedy in this instance, where there is insufficient
prejudice to Patent Owner. A more reasonable remedy would be to have
Petitioner re-file the documents, but at this late stage of the proceeding,

3
“system. A collection of components organized to accomplish a specific
function or set of functions.” IEEE Standard Glossary of Software
Engineering Terminology 73 (IEEE Std 610.12-1990, 1990) (Ex. 3001).
4
“subsystem. A secondary or subordinate system with a larger system.” Id.
at 72.
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where briefing has closed, there is no compelling reason to have Petitioner
re-file the documents.
Regarding Patent Owner’s arguments that Exhibit 1023 goes beyond
the scope of Patent Owner’s Response, we find this argument unpersuasive.
As an initial matter, a motion to exclude is not a proper vehicle for use by a
party to raise the issue of a reply exceeding the proper scope in violation of
37 C.F.R. § 42.23(b). See Vibrant Media Inc. v. General Electric Co., Case
IPR2013-00170, slip op. at 31 (PTAB June 26, 2014) (Paper 56) (“Whether
a reply contains arguments or evidence that are outside the scope of a proper
reply under 37 C.F.R. § 42.23(b) is left to our determination.”). Moreover,
the evidence cited by Dr. Michalson in his testimony is encouraged by our
rules. See 37 C.F.R. § 42.65(a) (“Expert testimony that does not disclose the
underlying facts or data on which the opinion is based is entitled to little or
no weight.”). The documents supplied in the sub-exhibits are the underlying
facts that the opinion relies upon. See, e.g., Ex. 1023, 10 (citing the sub-
exhibits in support of his testimony). Further, Dr. Michalson’s testimony is
in response to particular arguments Patent Owner made in its Response.
Specifically, Dr. Michalson’s testimony is limited to the LAN/WAN (id. at
7–11), storage (id. at 11–13), and encryption (id. at 13–15) disclosures in
Campbell. Patent Owner argues that Campbell does not disclose encryption
in the Response. See, e.g., PO Resp. 29 (encryption). As such, Dr.
Michalson’s testimony is, on its face, in response to Patent Owner’s
arguments. Patent Owner does not set forth a persuasive argument that Dr.
Michalson’s testimony is improper in this instance. As to Dr. Michalson’s
testimony on storage (Ex. 1023, 11–13), it is not clear to us whether this
testimony is in response to Patent Owner’s arguments in the Response.
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Further, Dr. Michalson’s testimony on LANs/WANs (id. at 7–11) appears to
be present because of its relevance in another proceeding (CBM2014-
00057); Petitioner is merely re-using the same testimony for multiple
proceedings. Our Decision does not rely on this testimony, however, so
there is no need to exclude this portion of the testimony. In view of the
above, Patent Owner’s Motion to Exclude Exhibit 1023 is denied.
We also deny Patent Owner’s Motion to Exclude Paper 23 (Revised
Exhibit List) and Petitioner’s Reply. It is not clear to us why we should
exclude an exhibit list; it is not evidence. Cf. 37 C.F.R. § 42.64(c) (“A
motion to exclude evidence . . .”) (emphasis added). As to Petitioner’s
Reply, we have already determined that Exhibit 1023 will not be excluded
and, thus, we need not exclude the Reply or the portions that rely on
Exhibit 1023.
D. Anticipation by Campbell
1. Campbell
Campbell discloses a system that transmits check images and routes
those images between banks. Ex. 1012, Abstract. A first entity in the
system lies within sending bank 14. Id. at Fig. 1. Within this first bank,
hardware, and software are configured to create a check image and other
data (e.g., source and destination identifiers). Id. at 2:64–3:32, 5:23–28; see
also id. at 4:10–25 (describing the same hardware and software performing
the same operations for a dishonored check). The first bank sends the
gathered information to a second entity of the system, node 12, over a
network. Id. at 3:20–36; see also id. at 4:26–29 and 4:59–5:1 (describing the
transmission in the dishonored check example). Node 12 performs various
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tasks with the sent information, one task being the forwarding of the check
image to the appropriate receiving bank. Id. at 1:60–67, 2:30–32. Receiving
bank 16, therefore, is a third entity in the system. See id. at Figs. 1, 2. The
system is equipped to send and receive encrypted information between the
banks and within its own central node 12. Id. at 5:55–60, 6:37–38.
2. Petitioner’s Ground: Anticipation of Claim 42
Petitioner asserts that claim 42 is anticipated by Campbell. Pet. 22–
27. Independent claim 42 requires a remote data access subsystem, a central
data processing subsystem, and a communications network. Petitioner reads
the remote data access subsystem on the first bank subsystem of Campbell.
Pet. 23–24. In particular, Petitioner asserts that Campbell describes check
imaging equipment 18 that is responsible in part for managing and carrying
out the capture and transmission of scanned paper transaction data in the
form of checks. Id. (citing Ex. 1012, 2:32–42, 2:64–66, 3:1–10, 3:17–20,
3:61–67). The destination of the scanned image may be verified by an
operator. Id. at 24 (citing Ex. 1012, 3:60–67). A network interface helps the
imaging equipment 18 transmit the data over a network. Id. at 23 (citing
Ex. 1012, 3:17–20). Petitioner reads the central data processing subsystem
on the node 12 of Campbell. Id. at 24–26. In particular, Petitioner asserts
that Campbell describes node 12 as carrying out and managing the
processing, sending, verifying, and storing of the paper transaction data. Id.
(citing Ex. 1012, 2:26–32, 3:55–58, 4:30–39, 5:23–28, 5:30–39, 7:54–59).
Lastly, Petitioner reads the communications network on the various
networks involved in the above subsystems, including local area network 56
for sending data within node 12 and a network connecting imaging
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equipment 18 and network interface 10 of the first bank. Pet. 26. Another
network, via public switched telephone network 10 serves as a connection
between the bank and node. Id. With respect to the “encrypted subsystem
identification information,” Petitioner asserts that the remote data access
subsystem provides both an encrypted SSID in the form of an identifier of
the remote data access subsystem (i.e., the bank) as well as an encrypted
check image. Pet. 27 (citing Ex. 1012, 5:26–27, 55–60).
3. Patent Owner’s Arguments: Anticipation of Claim 42
We have reviewed Patent Owner’s arguments against Petitioner’s
ground (PO Resp. 15–43); the principal arguments are addressed below.
With respect to independent claim 42, Patent Owner principally
argues that Campbell fails to disclose a) “subsystems” and b) “encryption”
of the SSID in the manner required by the claim. See, e.g., PO Resp. 21 and
23 (arguing “subsystem”); id. at 28–29 (arguing “encryption”).
a. “subsystem”
Campbell discloses a system for transporting the images of checks.
Ex. 1012, 2:18–20 (“FIG. 1 shows an example of a system for transporting
images of checks”). As such, we are persuaded by Petitioner’s position that
the various separately identifiable objects operating within this system—
namely, the first bank, the node, and the second bank—are subsystems
within this system.
5
Except for the “encryption” aspect of the claim,
discussed below, Patent Owner raises no cogent argument that the first bank,
the node, or the second bank in Campbell fail to disclose any element of

5
See supra notes 3, 4.
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claim 42. Instead, Patent Owner’s argument is that one or more entities in
Campbell are not commonly owned. See, e.g., PO Resp. 21, 23. We
determined in our claim construction section, however, that there is no
ownership requirement to be a “subsystem” of the claimed system.
Accordingly, Patent Owner’s argument is unpersuasive. Reviewing the
record before us, we are persuaded that Petitioner has established that the
“remote data access subsystem” reads on the first bank in Campbell and the
“central data processing system” reads on the node.
b. “encryption”
Patent Owner argues that the disclosure of Campbell that Petitioner
relies on discloses encryption, but only of check images (see, e.g., id. at 28–
29). Petitioner cites to Campbell, column 5, lines 14–60, which discusses
encryption of information as follows:
The controller 42 may read some data
accompanying check images, for example, it may
identify that TCP/IP protocol information
accompanying those images. That information
may instruct the node 12 about the identity of the
sending institution and the intended receiving
institution. That information may also identify the
disposition of the check . . . .
The controller 42 may also be configured to handle
information encrypted by sending institutions to
provide security for the images transported by the
network 38. The controller 42 may have its own
encryption and decryption equipment to provide a
secure environment in the node 12.
Pet. 29. In our Decision to Institute this trial, we determined that
Campbell’s system “is equipped to send and receive encrypted information
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between the banks,” relying on the above-cited passage in Campbell. Dec.
Inst. 10 (citing Ex. 1012, 5:55–60).
With a full record, we find that the preponderance of the evidence
supports Petitioner’s position. Campbell does not state that only the image
is encrypted. Instead, Campbell states that “information [is] encrypted . . . to
provide security for the images transported.” Ex. 1012, 5:55–58 (emphasis
added). Thus, Campbell uses the terms information and image for different
things. Earlier in that column, Campbell also explains what it means by
“information,” and it is clear that this information is not just images but
rather includes “information that accompan[ies] those images.” Id. at 5:25–
26 (emphasis added). For example, the information identifies the “sending
institution,” “receiving institution,” and “the disposition of the check.” Id. at
5:26–31. As we discussed above in our claim construction section, we are
persuaded that information that identifies the sending institution is an SSID.
Thus, when this information is encrypted, it is an encrypted SSID, as
required by claim 1. See also Ex. 1023, 15 (Petitioner’s expert, Dr.
Michalson, testifying that the encrypted information in Campbell identifies
the receiving institution). Reviewing the record before us, we are persuaded
that Campbell discloses transmitting an encrypted SSID.
c. Conclusion Regarding Claim 42
In view of the above, we determine that Petitioner has shown, by a
preponderance of the evidence, that Campbell anticipates the subject matter
of claim 42.
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E. Anticipation of Claim 43
Petitioner asserts that Campbell anticipates claim 43. Pet. 27–30.
Independent claim 43 is similar to claim 42, but expressed as a method
rather a system. Petitioner’s ground identifies components performing the
method steps, similar to those identified for claim 42. See Pet. 27–30.
Likewise, Patent Owner’s arguments against Petitioner’s ground for claim
43 are similar to its arguments for claim 42. See PO Resp. 39–43.
Reviewing Petitioner’s ground and Patent Owner’s arguments, we determine
that Petitioner has shown, by a preponderance of the evidence, that
Campbell anticipates the subject matter of claim 43 for substantially the
same reasons discussed above with respect to claim 42.
F. Conclusion for the Campbell Anticipation Ground
Reviewing the Petition, Patent Owner Response, Petitioner’s Reply,
and the evidence and arguments cited and discussed therein, we determine
that Petitioner has shown, by a preponderance of the evidence, that
Campbell anticipates the subject matter of claims 42 and 43.
III. ORDER
In view of the foregoing, it is hereby:
ORDERED that claims 42 and 43 of the ’137 patent are unpatentable;
and
FURTHER ORDERED that, because this is a Final Written Decision,
the 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.

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For PETITIONER:
Christopher L.E. Hines
Russ Jones, Jr.
Jay Heidrick
POLSINELLI, PC
chines@polsinelli.com
jheidrick@polsinelli.com
rjones@polsinelli.com

For PATENT OWNER:
Abraham Hershkovitz
Eugene Rzucidlo
HERSHKOVITZ & ASSOCIATES, PLLC
grzucidlo@hershkovitz.net
ahershkovitz@hershkovitz.net