Qualtrics, LLCv.OpinionLab, Inc.

Patent Trial and Appeal Board

Jul 24, 2015

09595050 (P.T.A.B. Jul. 24, 2015)

Trials@uspto.gov Paper 44
Tel: 571-272-7822 Entered: July 24, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
QUALTRICS, LLC,
Petitioner,
v.
OPINIONLAB, INC.,
Patent Owner.
_______________

Case IPR2014-00406
Patent 7,085,820 B1
_______________

Before RAMA G. ELLURU, JEREMY M. PLENZLER,
GEORGIANNA W. BRADEN, and CARL M. DEFRANCO, Administrative
Patent Judges.

PLENZLER, Administrative Patent Judge.

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

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I. INTRODUCTION
A. Background
Qualtrics, LLC (“Petitioner”) filed a Petition to institute an inter
partes review of claims 1–8, 11, 15, 18, 20, 25–32, 35, 39, and 42 of
U.S. Patent No. 7,085,820 B1 (Ex. 1001, “the ’820 patent”). Paper 6
(“Pet.”). Petitioner submitted an expert declaration from John Chisholm in
support of its Petition. Ex. 1005 (“Chisholm Declaration”). OpinionLab,
Inc. (“Patent Owner”) filed a Preliminary Response. Paper 9 (“Prelim.
Resp.”). In our Decision on Institution, we instituted trial for claims 1–8,
11, 15, 18, 20, 25–32, 35, 39, and 42 as unpatentable, pursuant to 35 U.S.C.
§ 103 over the combination of CustomerSat
1
and Medinets
2
. Paper 10
(“Dec.”).
During trial, Patent Owner filed a Patent Owner Response (Paper 20,
“PO Resp.”), which was supported by an expert declaration from Michael
Shamos, Ph.D. (Ex. 2002, “Shamos Declaration”). Petitioner filed a Reply
to the Patent Owner Response. Paper 32 (“Pet. Reply”). An oral hearing
was held on April 22, 2015. A transcript of the hearing has been entered
into the record. Paper 43 (“Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is issued pursuant to 35 U.S.C. § 318(a).

1
Internet Archive Wayback Machine,
https://web.archive.org/web/19980526190826/http:/www.customersat.com/
(May 26, 1998) (Ex. 1003, “CustomerSat”).
2
David Medinets, Perl5 by Example (1996) (Ex. 1004, “Medinets”).
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We determine that Petitioner has shown, by a preponderance of the
evidence, that claims 1–8, 11, 15, 18, 20, 25–32, 35, 39, and 42 of the ʼ820
patent are unpatentable.
B. Related Proceedings
Petitioner and Patent Owner indicate that the ’820 patent is the subject
of the following co-pending federal district court cases: OpinionLab, Inc. v.
Qualtrics Labs, Inc., No. 1:13-CV-01574 (N.D. Ill.); and OpinionLab, Inc. v.
iPerceptions Inc., No. 1:12-CV-05662 (N.D. Ill.). Pet. 2; Paper 8, 1.
In addition to this Petition, Petitioner has filed petitions challenging
the patentability of claims of Patent Owner’s U.S. Patent Nos. 6,421,724
(IPR2014-00314), 6,606,581 (IPR2014-00356), 8,041,805 (IPR2014-
00366), 7,370,285 (IPR2014-00420), and 8,024,668 (IPR2014-00421),
which are directed towards similar subject matter.
C. The ’820 Patent
The ’820 patent is titled “System and Method for Reporting to a
Website Owner User Reactions to Particular Web Pages of a Website” and is
directed to report generation for analysis of user feedback related to
particular web pages of a website. Ex. 1001, 1:12–15. Figure 3 of the ’820
patent is reproduced below.
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Figure 3 illustrates an exemplary web page, “web page 28,” that includes a
multi-level subjective rating scale for user submission of a general reaction
to the web page. In the example illustrated in Figure 3, rating scale 60
includes five rating levels, ranging from very positive (++) to very negative
(--). Id. at 12:31–41.
After the user selects one of rating levels 62, the user reaction
information is collected and stored in a database. Id. at 12:46–51. The ’820
patent explains that the stored information concerning web page 28 may be
provided to the website owner in the form of one or more reports that allows
the owner to assess the success of web page 28 from the perspective of the
user community. Id. at 13:35–38. Figure 8A of the ’820 patent is
reproduced below.
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Figure 8A is an example report, “report 100,” illustrating overall website
ratings, as well as ratings for individual web pages of the website.
Table 102 from report 100 is directed to overall ratings of the website
and includes timeframe 104 (the time during which user reactions were
collected); website overview 106 (including the total number of ratings
received, number of pages rated, and number of comments); and site detail
108 (a summary of evaluated elements of the website). Id. at 17:12–62.
Chart 124 from report 100 is directed to relative ratings among the
various web pages of the website, and includes one line 126 for each web
page 28 of the website. Id. at 17:63–65. The ’820 patent explains that
lengths 128 of lines 126 vary based on the total number of reviews received
for corresponding web page 28. Id. at 17:66–18:1. Chart 124 includes
regions for negative, neutral, and positive ratings, with the location of lines
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126 corresponding to the rating for each particular webpage 28. Id. at
18:26–45.
Claims 1 and 25 are independent, with claims 2–8, 11, 15, 18, and 20
depending from claim 1 and claims 26–32, 35, 39, and 42 depending from
claim 25. Claim 1 illustrates the claimed subject matter and is reproduced
below:
1. A system for reporting to a website owner page-
specific subjective user reactions concerning each
of a plurality of particular web pages of a website,
comprising:
a database containing page-specific subjective
user reaction information for each of the plurality
of particular web pages of the website, the page-
specific subjective user reaction information for a
particular web page reflecting page-specific
subjective user reactions to the particular web page
as a whole received from users that have accessed
the particular web page; and
a reporting module coupled to the database and
operable to generate one or more reports using the
page-specific subjective user reaction information
for communication to the website owner, each
report reflecting page-specific subjective user
reactions across the plurality of particular web
pages of the website and allowing the website
owner to identify one or more particular web pages
of the website for which the page-specific
subjective user reactions are notable relative to
page-specific subjective user reactions for other
particular web pages of the website.
Id. at 25:39–59.
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D. Claim Construction
In an inter partes review, claim terms in an unexpired patent are given
their broadest reasonable interpretation in light of the specification in which
they appear and the understanding of others skilled in the relevant art.
37 C.F.R. § 42.100(b). Applying that standard, we interpret the claim terms
of the ’820 patent according to their ordinary and customary meaning in the
context of the patent’s written description. See In re Translogic Tech., Inc.,
504 F.3d 1249, 1257 (Fed. Cir. 2007).
Petitioner proposes a construction of several claim terms of the ’820
patent (Pet. 6–12), and Patent Owner does not contend that any terms should
be construed (PO Resp. 5–6 n. 4). We determine that the claim terms do not
require express construction in order to conduct properly our analysis of the
prior art.
II. ANALYSIS
We have reviewed the Petition, the Patent Owner Response, and
Petitioner’s Reply, as well as the relevant evidence discussed in those
papers. We are persuaded that Petitioner has established, by a
preponderance of the evidence, that claims 1–8, 11, 15, 18, 20, 25–32, 35,
39, and 42 would have been obvious over the combination of CustomerSat
and Medinets.
A. Overview of CustomerSat
CustomerSat includes excerpts from a website showing consumer
surveys from website users. Ex. 1003, 3. CustomerSat describes an
invitation system where website visitors are selected to participate in a
survey reviewing the website, and explains that feedback of different
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portions of the website can be gathered by including surveys on multiple
pages of the website. Id. at 7. User responses are handled electronically and
stored to a database. Id. at 16.
With respect to the subject matter of the surveys, CustomerSat
explains that “[t]he most important question is one which asks for the
customer’s overall assessment” and “most commonly has five rating
choices, but anywhere from three to eleven are possible.” Id. at 20.
Examples of the rating choices are “Excellent, Very Good, Good, Fair, Poor;
and Very Satisfied, Satisfied, Neutral/No opinion/Neither Satisfied nor
Dissatisfied, Dissatisfied, Very Dissatisfied.” Id.
CustomerSat explains that survey “[r]esults may be analyzed by
frequency distribution of responses for each question, by respondent sub-
group or segment; by cross-tabulation; by difference between stated
importance and rated performance (gap analysis); and in many other ways.”
Id. at 18 (emphasis omitted). Frequency distributions are described as being
used to “examine the distribution of the full set of responses for each closed-
end question among the question’s choices.” Id. at 25. CustomerSat
describes segmentation as examining results for subsets of respondents, such
as based on user demographics, and cross-tabs as “provid[ing] a systematic
tabulation and display of results by respondent segment for all choices of all
questions of interest.” Id.
B. Overview of Medinets
Medinets is a manual for the Perl programming language. Ex. 1004,
1.
3
Medinets is directed to using Perl for common gateway interface (CGI)

3
The cited page numbers for this exhibit are located at the bottom right of
the exhibit.
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programming, which is described as “the standard programming interface
between Web servers and external programs.” Id. at 51. Medinets further
explains that “Perl is the de facto standard for CGI programming.” Id. at 52.
Medinets discusses general report generation features in Perl and
provides an example report for displaying a CD collection including “the CD
album’s title, the artist’s name, and the album’s price.” Id. at 29. Medinets
provides an additional example that converts a report into a web page. Id. at
57. The example report displays statistics regarding specific documents
accessed, such as documents that start with the letter “s.” Id. at 57-60.
With respect to user feedback, Medinets notes that “[o]ne of the
hallmarks of a professional Web site . . . is that every page has . . . a way to
provide feedback,” and provides an example web page comment form,
shown in Figure 21.3, reproduced below. Id. at 60–64.

Figure 21.3 is an illustration of a web page comment form and includes the
recipient’s e-mail address, a subject line, the sender’s e-mail address, an
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indication of the sender’s urgency for receiving a reply (e.g., just FYI, please
reply, reply urgently), nature of the feedback (typo, bug, etc.), and a
comment field.
Medinets explains that the system sends information from the
feedback form to the recipient’s e-mail address. Id. at 64. Medinets,
however, specifies that the recipient will “need to perform further processing
in order to make use of the information.” Id. Medinets further explains that
the website owner “might want to have the feedback submit button call a
second CGI script that stores the feedback information into a database”
which “will make it much easier for you to track the comments and see
which Web pages generate the most feedback.” Id.
C. Obviousness over CustomerSat and Medinets
1. Claim 1
As seen above, claim 1 is directed to “[a] system for reporting to a
website owner page-specific subjective user reactions concerning each of a
plurality of particular web pages of a website” including “a database” and “a
reporting module.” The claim requires that the database contain “page-
specific user reactions” and the reporting module is “operable to generate
one or more reports . . . reflecting page-specific subjective user reactions
across the plurality of particular web pages of the website” allowing
identification web pages having “notable” user reactions.
Petitioner relies on CustomerSat as teaching a website user feedback
system including a database containing subjective user reaction data for a
website (Pet. 15–16) and a reporting module that generates reports using the
subjective user reaction data to allow identification of notable user reactions
relative to a number of variables (id. at 20–22). Petitioner cites Medinets as
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teaching page-specific user feedback. Id. at 34–36, 43. Petitioner contends
that it would have been obvious to combine “the explicit page-specific
disclosure of Medinets, (supra Section VII(B)), with the website user
feedback system disclosed in CustomerSat, (supra Section VII(A)).” Id. at
43.
Petitioner reasons, for example, that “it would have been obvious to
combine the explicit solicitation of user feedback about a ‘web page’
disclosed in Medinets with the teachings of CustomerSat” because
“CustomerSat also recommends collecting feedback on a page-by-page
basis: ‘Feedback on different sections of your Web site can be gathered by
using Pop!Up on multiple pages of the site.’” Id. at 42 (quoting Ex. 1003,
7). Petitioner further contends that the proposed combination would have
been obvious because the references each address the same problem in the
same manner, including solicitation of feedback from users of a web page
through HTML forms, Common Gateway Interface (CGI) scripts, and
databases. Id. at 41–42. Petitioner contends that because the Perl
programming language, which is the subject of Medinets, “was recognized
as the ‘de facto standard for CGI programming,’ (Medinets, at 408 (52)), a
[skilled artisan] would have had reason to consult Medinets to understand
how to implement surveys on a page-by-page basis using (among other
things) CGI scripts.” Id. at 42 (quoting Ex. 1004, 52).
Patent Owner does not dispute, and we agree, that CustomerSat
teaches the database and reporting module features for website-level
feedback noted above, and that Medinets teaches eliciting page-specific user
feedback. See, e.g., Ex. 1003, 18; Ex. 1004, 60. For example, Patent Owner
acknowledges that “CustomerSat discloses a data collection system for a
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website as a whole” (PO Resp. 8) and “that its survey results can be
‘analyzed’ by such things as ‘frequency distribution of responses for each
question, by respondent sub-group or segment; by cross-tabulation; [and] by
difference between stated importance and rated performance (gap analysis)’”
(id. at 10 (quoting Ex. 1003, 18)). Patent Owner also acknowledges that
“Medinets suggests an improvement where the identification of the web
page from which the comments are sent is automated” and “setting up a
script to store the textual feedback in a database.” Id. at 12–13.
Patent Owner, however, contends that “[t]here is no disclosure,
teaching, or suggestion in CustomerSat of any collection of page-specific
comments or ratings across multiple web pages” (id. at 15) and Medinets
“does not allow a website owner to compare the substance of page-specific
feedback in those e-mails (such as page-specific ratings or comments) across
web pages” (id. at 18–19), which is unpersuasive for this challenge. As
indicated in our Decision to Institute (Dec. 9–10, 14), and acknowledged by
Patent Owner (PO Resp. 15, 18–19), we did not institute trial based on
anticipation by either CustomerSat or Medinets. In this challenge, Petitioner
does not require CustomerSat or Medinets to individually teach the page-
specific user reaction reporting required by the claim. Rather, Petitioner
relies on the combined teachings of CustomerSat and Medinets.
Specifically, Petitioner has proposed modifying CustomerSat such that its
user feedback is for specific pages, and that the resulting reporting is
segmented by page accordingly. See Pet. 43.
In response to Petitioner’s contentions regarding the combination of
CustomerSat and Medinets, Patent Owner contends that “Petitioner has
provided no explanation of why one of ordinary skill would have had any
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need, desire, or reason to track comments related to particular web pages in
the context of CustomerSat’s website-wide, high-level, user survey system.”
PO Resp. 23–24. We disagree.
As noted above, CustomerSat at least teaches a database including
website-level subjective user reaction data and reporting that data segmented
by a number of variables. Ex. 1003, 16, 18. Petitioner contends that “to the
extent website owners (or POSITA) believed user satisfaction varied by web
page, CustomerSat specifically encouraged them to design, deploy and
analyze their surveys on a page-by-page basis.” Pet. 42–43 (citing Ex. 1005
¶¶ 137–138). Indeed, CustomerSat explicitly notes, for example, that
“Feedback on different sections of your Web site can be gathered by using
Pop!Up on multiple pages of the site.” Ex. 1003, 7. CustomerSat also
allows a website owner to specify the exact page on which a given survey
invitation will appear. Id. at 8. Even if CustomerSat does not disclose
explicitly identifying the survey feedback as being related to any particular
page when it is gathered, Petitioner contends that Medinets teaches this
feature. See, e.g., Pet. 35 (citing Ex. 1004, 60). We are persuaded that one
skilled in the art would have found it obvious to identify the page
corresponding to the feedback in CustomerSat.
As Petitioner contends, and Patent Owner does not dispute, both
CustomerSat and Medinets implement user feedback systems using
Common Gateway Interface (CGI) scripts. See Ex. 1003, 7; Ex. 1004, 52.
For example, Petitioner notes that “CustomerSat’s Pop!Up page explicitly
discloses the use of a CGI script to implement its Pop!Up survey
technology” (Pet. 5–6 (citing Ex. 1003, 7)) and that “Perl was recognized as
the ‘de facto standard for CGI programming’” (Pet. 41 (quoting Ex. 1004,
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52)). Further, as noted by Petitioner at oral hearing (Tr. 38:5–13), when
Patent Owner’s expert, Dr. Shamos, was asked whether it would have been
obvious to solicit user feedback on a page-specific basis versus an overall
website basis, he answered “[p]ossibly” (Ex. 1026, 382:8–16). When asked
why it would not have been obvious to use page-specific feedback, Dr.
Shamos replied: “I didn’t say it wasn’t.” Id. at 402:18–403:4.
Petitioner contends that a person skilled in the art “simply could have
plugged this page identifier [taught by Medinets] into the extensive
analytical and reporting capabilities disclosed in CustomerSat.” Pet. Reply
7; see Ex. 1005 ¶¶ 70–71. With respect to reporting, as noted above,
CustomerSat at least teaches cross-tab reporting segmented by a number of
variables for a website as a whole. Ex. 1003, 25. When CustomerSat’s
feedback system is modified to identify feedback as corresponding to a
particular page, we are persuaded that it would have been obvious to
generate reports indicating subjective user reactions for one web page that
are notable relative to page-specific subjective user reactions for other
particular web pages of the website. For example, we are persuaded by Dr.
Chisholm’s testimony that one skilled in the art would have found it obvious
to create a cross-tab report based on user feedback for individual web pages,
such as a cross-tab report showing average user ratings for each page of a
website. See Ex. 1005 ¶ 208. Specific web pages corresponding to feedback
would simply be another variable used in CustomerSat’s reporting.
For these reasons, we are persuaded by Petitioner’s contentions
regarding claim 1.
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2. Claims 2–8, 11, 15, 18, and 20
Claims 2–8, 11, 15, 18, and 20 depend from claim 1. Patent Owner
does not respond to Petitioner’s contentions regarding these claims
specifically. We have reviewed the cited portions of CustomerSat and
Medinets, and are persuaded by Petitioner’s contentions regarding those
claims.
3. Claims 25–32, 35, 39, and 42
Independent claim 25 includes limitations similar to those found in
claim 1, and the contentions presented by Petitioner and Patent Owner with
respect to claim 25 are similar to those presented for claim 1. See Pet. 32–
37, 46–60; PO Resp. 14–31. For the reasons discussed above regarding
claim 1, we are also persuaded by Petitioner’s contentions regarding claim
25. As for claims 26–32, 35, 39, and 42, which depend from claim 25, we
note that Patent Owner does not respond to Petitioner’s contentions
regarding those claims specifically. We have reviewed the cited portions of
CustomerSat and Medinets, and are persuaded by Petitioner’s contentions
regarding those claims.
4. Secondary Considerations
As part of our obviousness analysis, we consider the evidence and
arguments submitted by Patent Owner regarding secondary considerations of
non-obviousness. See Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966). In particular, Patent Owner argues that commercial success,
industry praise, and copying demonstrate that the challenged claims would
not have been obvious to a person of ordinary skill in the art. PO Resp. 22–
26.
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a. Commercial Success
As evidence of commercial success, Patent Owner alleges its “page-
specific feedback solution embodying the claimed invention
4
is utilized by
including nearly half of Fortune 50 organizations.” Id. at 37. Patent Owner
further contends that “this feedback solution, as designated by OpinionLab’s
[+] feedback symbol, had already been ‘adopted by hundreds of brands and
implemented on more than 6,500 websites worldwide.’” Id. at 38. We are
not persuaded by Patent Owner’s arguments.
Initially, we note that “[e]vidence of commercial success, or other
secondary considerations, is only significant if there is a nexus between the
claimed invention and the commercial success.” Ormco Corp. v. Align
Tech., Inc., 463 F.3d 1299, 1311–12 (Fed. Cir. 2006). In its summary of the
legal standard for secondary considerations, Patent Owner states, generally,
that “[a] nexus is presumed[] when a marketed product is coextensive with
the asserted claims.” PO Resp. 31 (citing Teva Pharms. USA, Inc. v.
Sandoz, Inc., 723 F.3d 1363, 1372 (Fed. Cir. 2013)). Patent Owner,
however, offers no persuasive explanation or evidence to support the
allegation that its allegedly commercially successful product is coextensive
with the claimed invention. In fact, Patent Owner’s reference to the patent
markings on its product appears to be evidence that the product is not
coextensive with the claimed invention, as its product lists at least fourteen
patents, in addition to the ’820 patent, that apply to its product. See id. at
32–33.

4
Patent Owner identifies “the claimed invention” in its discussion of
secondary considerations as independent claims 1 and 25. Pet. 33 n.9.
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In its specific discussion of “nexus,” Patent Owner contends that “[a]
nexus between the OpinionLab product and the challenged claims is easy to
show,” but simply alleges that its product includes the limitations of claim 1
and references the patent markings discussed above. Id. at 32. To show
how commercial success supports non-obviousness, however, Patent Owner
must prove that the sales were a direct result of the unique characteristics of
the invention, and not a result of economic and commercial factors unrelated
to the quality of the patented subject matter, which Patent Owner has not
even attempted to show. See In re Applied Materials, Inc., 692 F.3d 1289,
1299–1300 (Fed. Cir. 2012). Even if Patent Owner’s product includes the
limitations of claim 1, there is no explanation as to how these limitations are
related to the alleged commercial success, other than summarily alleging its
product satisfies the limitations. See PO Resp. 32–37. Patent Owner
provides examples of the database and reporting module features of its
product and discusses use of various features by its customers, but does not
attempt to tie any of these features to the alleged commercial success.
Patent Owner’s specific discussion of “commercial success” does not cure
this deficiency. See id. at 37–38 (alleging that “OpinionLab’s page-specific
user feedback solution embodying the claimed invention is utilized by an
extensive list of customers” and that “OpinionLab’s customer list has
continued to grow” without tying this alleged commercial success to the
unique characteristics of the claims).
Accordingly, we are not persuaded by Patent Owner’s allegations of
commercial success.
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b. Industry Praise
Patent Owner contends, generally, that it “has received widespread
industry recognition and praise for the claimed technology as demonstrated
in the many articles written on OpinionLab’s page-specific user feedback
solution.” Id. at 38. As with commercial success, however, evidence of
industry praise is only relevant when it is directed to the merits of the
invention claimed. See Ormco, 463 F.3d at 1311. Patent Owner identifies
various documents discussing features of its product. See PO Resp. 38–39.
For example, Patent Owner quotes the discussion from Exhibit 2019 of “the
iconic image of a rotating plus/minus sign,” the discussion from Exhibit
2020 stating “OpinionLab, the pioneer and leader in voice-of-customer
(VOC) listening technologies,” and the discussion from Exhibit 2017
regarding “OpinionLab’s [+] feedback symbol.” Id. Notably, these
materials quoted in the Patent Owner Response praise OpinionLab’s product
in general. Patent Owner does not identify any praise due to specific
features that are present in the claims. Patent Owner has not established a
sufficient nexus with the claimed invention.
Accordingly, we are not persuaded by Patent Owner’s allegations of
industry praise.
c. Copying
Patent Owner contends that “there is strong evidence of copying by
others of OpinionLab’s page-specific user feedback solution covered by the
’820 Patent claims.” Id. at 39. Patent Owner notes that “[t]his copying is
generally shown for at least the reasons identified in Exhibit 1008 to the
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Petition, which includes OpinionLab’s Infringement Contentions.”
5
Id.
Patent Owner notes that “[t]he Infringement Contentions of Exhibit 1008
illustrate in detail how each element of the challenged claims are present in
Petitioner’s system.” Id. at 40. Patent Owner’s arguments regarding
copying are not persuasive.
“[C]opying requires evidence of efforts to replicate a specific
product.” Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010).
Patent Owner does not provide any analysis or explanation of how other
companies, such as Petitioner, allegedly copied its product that allegedly
includes the features of the claimed invention. Rather, Patent Owner simply
shows similarities between its products and those offered by Petitioner. See
Pet. 40–41.
Accordingly, we are not persuaded by Patent Owner’s allegations of
copying.
5. Conclusion
We have considered the entirety of the evidence, including the
evidence of obviousness and the evidence of secondary considerations
submitted by Patent Owner. For the reasons set forth above, Petitioner has
established, based on a preponderance of the evidence, that claims 1–8, 11,
15, 18, 20, 25–32, 35, 39, and 42 would have been obvious over the
combination of CustomerSat and Medinets.

5
To the extent Patent Owner relies on arguments in Exhibit 1008 not
discussed in the Patent Owner response, we decline to address those
arguments. See 37 C.F.R. § 42.6(a)(3) (“Arguments must not be
incorporated by reference from one document into another document.”).
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D. Petitioner’s Motion to Exclude
Petitioner filed a Motion to Exclude Evidence seeking to exclude
portions of the Shamos Declaration and portions of the deposition testimony
of Dr. Shamos (Ex. 1026). Paper 36 (“Mot.”). Even without excluding this
evidence, we have determined that Petitioner has established, based on a
preponderance of the evidence, the unpatentability of claims 1–8, 11, 15, 18,
20, 25–32, 35, 39, and 42 of the ’820 patent. Thus, Petitioner’s Motion is
moot for this reason. Further, Petitioner’s arguments on these items go to
the weight to be accorded to the evidence. Decisions regarding the
appropriate weight to accord to evidence are within our purview.
For these reasons, we deny Petitioner’s motion.

III. SUMMARY
Petitioner has demonstrated, by a preponderance of the evidence that
claims 1–8, 11, 15, 18, 20, 25–32, 35, 39, and 42 of the ’820 patent are
unpatentable.

IV. ORDER
For the reasons given, it is
ORDERED that Claims 1–8, 11, 15, 18, 20, 25–32, 35, 39, and 42 are
unpatentable as obvious over CustomerSat and Medinets;
FURTHER ORDERED that Petitioner’s Motion to Exclude is denied;
and
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FURTHER ORDERED that parties to the proceeding seeking judicial
review of this Final Written Decision must comply with the notice and
service requirements of 37 C.F.R. § 90.2.

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For PETITIONER:

Robert Steinberg
Neil A. Rubin
Jonathan M. Jackson
Philip Wang
LATHAM & WATKINS LLP
bob.steinberg@lw.com
neil.rubin@lw.com
jonathan.jackson@lw.com
philip.wang@lw.com

For PATENT OWNER:

Christopher W. Kennerly
Timothy P. Cremen
Naveen Modi
PAUL HASTINGS LLP
chriskennerly@paulhastings.com
timothycremen@paulhastings.com
naveenmodi@paulhastings.com