`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`CRS ADVANCED TECHNOLOGIES, INC.
`Petitioner
`v.
`Patent of FRONTLINE TECHNOLOGIES, INC.
`Patent Owner
`______________
`Case CBM2012-00005
`Patent 6,675,151
`_____________
`
`PATENT OWNER’S PRELIMINARY RESPONSE OPPOSING PETITION FOR
`TRANSITIONAL POST-GRANT REVIEW UNDER §18 OF THE LEAHY-
`SMITH AMERICA INVENTS ACT AND 35 U.S.C. § 321
`
`
`
`
`
`
`
`

`

`I.
`
`II.
`
`TABLE OF CONTENTS
`Introduction ...................................................................................................... 1
`
`Background ...................................................................................................... 4
`
`A.
`
`B.
`
`C.
`
`Frontline’s 151 Patent ........................................................................... 5
`
`Prior Litigation For Patent Infringement ............................................... 7
`
`Pending District Court Action ............................................................... 8
`
`III. Statement of the Relief Requested ................................................................... 9
`
`IV. Statement of Reasons Why No Post-Grant Review Should Be
`Instituted Under 35 U.S.C. § 324 .................................................................. 10
`
`A.
`
`B.
`
`C.
`
`The Petition Fails to Demonstrate that the 151 Patent Is A
`Covered Business Method Patent Under Section 18 of The AIA ....... 10
`
`35 U.S.C. § 101 Does Not Fall Within the Available Grounds
`for Challenging Patentability .............................................................. 17
`
`The Petition Fails To Demonstrate That It Is More Likely Than
`Not That Claims 3, 6, 7, 16, 24, and 32 Are Unpatentable Under
`35 U.S.C. § 101 ................................................................................... 28
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`Claim 3 Is Not Directed To An Abstract Idea .......................... 30
`
`Petitioner’s Analysis is Deficient ............................................. 38
`
`Claim 3 Does Not Preempt Use of an Abstract Idea ................ 39
`
`Claim 6 is Likewise Not Directed to an Abstract Idea ............. 41
`
`Dependent claims 7, 16, 24, and 33 Are Not Directed to
`an Abstract Idea ........................................................................ 43
`
`D.
`
`The Petition Fails To Demonstrate That It Is More Likely Than
`Not That Claims 3, 6, 7, 16, 24, and 33 Are Invalid Under 35
`U.S.C. § 112, First Paragraph As Lacking Written Description
`Support in the Specification as Originally Filed ................................. 43
`
`1.
`
`Claims 3, 6, 7, 16, 24, and 33 Have Written Description
`Support in the 133 Patent .......................................................... 46
`
`
`
`i
`
`

`

`2.
`
`Claims 3, 6, 7, 16, 24, and 33 Have Written Description
`Support in the 151 Patent .......................................................... 58
`
`V.
`
`Conclusion ..................................................................................................... 59
`
`
`
`
`
`ii
`
`

`

`
`CASES
`
`Table of Authorities
`
`
`
`American Sterilizer Co. v. Sybron Corp.,
`614 F.2d 890 (3d Cir. 1980) ............................................................................... 16
`
`Ariad Pharms., Inc. v. Eli Lilly & Co.,
`598 F.3d 1336 (Fed. Cir. 2010) .................................................................... 44, 45
`
`Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech.,
`543 F.3d 657 (Fed. Cir. 2008) ...................................................................... 26, 27
`
`Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada,
`687 F.3d 1266 (Fed. Cir. 2012) ........................................................ 30, 36, 37, 39
`
`Bilski v. Kappos,
`130 S. Ct. 3218 (2010) ........................................................................................ 29
`
`Blonder-Tongue Lab. v. Univ. of Ill. Found.,
`402 U.S. 313 (1971) ............................................................................................ 25
`
`Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co.,
`331 U.S. 519 (1947) ............................................................................................ 20
`
`Classen Immunotherapies, Inc. v. Biogen IDEC,
`659 F.3d 1057 (Fed. Cir. 2011) .......................................................................... 22
`
`CLS Bank International v. Alice Corp.,
`685 F.3d 1341 (Fed. Cir. 2012) .......................................................................... 36
`
`Cohens v. Virginia,
`19 U.S. 264 (1821) .............................................................................................. 26
`
`Crown Packaging Tech., Inc. v. Ball Metal Beverage Container Corp.,
`635 F.3d 1373 (Fed. Cir. 2011) .............................................................. 44, 45, 49
`
`Diamond v. Chakrabarty,
`447 U.S. 303 (1980) ..................................................................................... 28, 29
`
`Diamond v. Deihr,
`450 U.S. 175 (1981) ................................................................................ 20, 21, 38
`
`
`
`iii
`
`

`

`Fuzzysharp Techs., Inc. v. 3DLabs Inc., Ltd.,
`447 Fed. Appx. 182 (Fed. Cir. 2011) .................................................................. 29
`
`Garcia v. United States,
`469 U.S. 70 (1984) .............................................................................................. 27
`
`Graham v. John Deere Co.,
`383 U.S. 1 (1966) .............................................................................. 24, 25, 26, 27
`
`In re Bergy,
`596 F.2d 952 (C.C.P.A. 1979),
`vacated as moot, 444 U.S. 1028 (1980) ............................................ 21, 22, 23, 24
`
`In re Wright,
`866 F.2d 422 (Fed. Cir. 1986) ................................................................ 45, 48, 55
`
`Kewanee Oil Co. v. Bicron Corp.,
`416 U.S. 470 (1974) ............................................................................................ 25
`
`Koito Mfg., Ltd. v. Turn-Ke-Tech, LLC,
`381 F.3d 1142 (Fed. Cir. 2004) .................................................................... 45, 46
`
`Lampi Corp. v. American Power Prod. Inc.,
`228 F.3d 1365 (Fed. Cir. 2000) .............................................................. 45, 48, 55
`
`Mayo Collab. Servs. v. Prometheus Labs., Inc.,
`132 S. Ct. 1289 (2012) ........................................................................................ 25
`
`MySpace, Inc. v. Graphon Corp.,
`672 F.3d 1250 (Fed. Cir. 2012) .................................................................... 21, 22
`
`Pennsylvania Dept. of Corrections v. Yeskey,
`524 U.S. 206 (1998) ............................................................................................ 19
`
`Research Corp. Techs., Inc. v. Microsoft Corp.,
`627 F.3d 859 (Fed. Cir. 2010) .......................................................... 29, 30, 34, 35
`
`Russello v. United States,
`464 U.S. 16 (1983) .............................................................................................. 20
`
`SiRF Tech., Inc. v. Int'l Trade Comm'n,
`601 F.3d 1319 (Fed. Cir. 2010) ..................................... 28, 30, 31, 32, 34, 37, 39
`
`
`
`iv
`
`

`

`United States v. Wong Kim Bo,
`472 F.2d 720 (5th Cir. 1972) .............................................................................. 20
`
`Vas-Cath Inc. v. Mahurkar,
`935 F.2d 1555 (Fed. Cir. 1991) .............................................................. 44, 45, 46
`
`Wright v. United States,
`302 U.S. 583 (1938) ............................................................................................ 26
`
`STATUTES
`
`35 U.S.C. § 120 ........................................................................................................ 45
`
`35 U.S.C. § 321 .................................................................................................... 7, 13
`
`35 U.S.C. § 321(b) ................................................................................................... 28
`
`35 U.S.C. § 324 ........................................................................................................ 10
`
`Patent Act of 1793 .................................................................................................... 25
`
`OTHER AUTHORITIES
`
`37 C.F.R. § 42.301(b) (2012) ................................................................................... 11
`
`37 C.F.R. § 42.304(a) (2012) ................................................................................... 10
`
`77 Fed. Reg. Vol. 157 .............................................................................................. 12
`
`H.R. Rep. No. 1923, 82d Cong., 2d Sess. (1952) .............................................. 23, 29
`
`S. Rep. No. 1979, 82d Cong. 2d Sess. (1952) ............................................. 23, 24, 29
`
`
`
`v
`
`

`

`I.
`
`Introduction
`
`U.S. patent 6,675,151 (“the 151 Patent”) is not a covered business method
`
`patent defined by Section 18 of the Smith-Leahy America Invents Act because the
`
`claims are directed to systems and methods for performing automated substitute
`
`worker fulfillment. The claims are not directed to systems or methods for
`
`performing data processing or other operations used in the practice, administration
`
`or management of a financial product or service. The fact that the claimed
`
`invention may be used by a retail bank in a manner similar to local school districts
`
`and other types of businesses for locating substitute workers is of no moment.
`
`Patent Owner, Frontline Technologies, Inc. (“Frontline”) respectfully
`
`requests that the Board dismiss the petition because CRS has not carried its burden
`
`of demonstrating that the 151 Patent is a covered business method patent and has
`
`not carried its burden of demonstrating a substantial likelihood that the claims at
`
`issue are invalid under Section 101 or 112 of the Patent Act.
`
`Petitioner CRS, Inc. (“CRS”) filed its petition in a desperate attempt to delay
`
`trial for infringing the 151 Patent in a case currently pending in the United Stated
`
`District Court for the Eastern District of Pennsylvania (No. 2:07-cv-2457) (filed
`
`June 18, 2007) (“District Court Action”). Given how far the District Court Action
`
`has progressed, one might question why CRS would devote the considerable
`
`resources necessary to prepare and file a petition under a transitional program for
`
`
`
`1
`
`

`

`covered business method patents in order to institute review of a patent that is
`
`directed to locating substitute workers. The answer is simple. Since the filing of
`
`the District Court Action, CRS has failed in its efforts to have the 151 Patent found
`
`invalid through ex parte reexamination at the USPTO, has failed in its attempt to
`
`have an overly restrictive claim construction adopted in the District Court Action,
`
`and has failed in its efforts to obtain summary judgment of no infringement.
`
`Although the investment in time and filing fees is significant and although the
`
`likelihood of a post grant review being instituted may be slim, petitioning for post
`
`grant review is a chance for CRS to disregard the reexamination efforts, to
`
`disregard the claim construction issued by Judge Robreno in the District Court
`
`Action, to disregard the failed summary judgment and try one more time to attack
`
`the 151 Patent.
`
`In addition to the 151 Patent not qualifying as a covered business method
`
`patent, Frontline is not the type of company intended to be the target of the
`
`transitional program set out in Section 18 of the Smith-Leahy America Invents Act.
`
`The introduction of Section 18 followed lobbying by the banking industry that had
`
`been plagued with lawsuits by so-called non-practicing entities. An exchange
`
`between Senators Durbin and Schumer is illustrative of the type of company
`
`Section 18 was intended to avoid:
`
`
`
`2
`
`

`

`Mr. DURBIN. I thank the Senator. I want to point
`out that there are a number of examples of companies
`that employ hundreds or thousands of American workers
`in developing and commercializing financial sector
`products that are based on business method patents. For
`example, some companies that possess patents
`categorized by the PTO as class 705 business method
`patents have used the patents to develop novel software
`tools and graphical user interfaces that have been widely
`commercialized and used within the electronic trading
`industry to implement trading and asset allocation
`strategies. Additionally, there are companies that possess
`class 705 patents which have used the patents to
`manufacture and commercialize novel machinery to
`count, sort, and authenticate currency and paper
`instruments. Are these the types of patents that are the
`target of Section 18?
`Mr. SCHUMER. No. Patent holders who have
`generated productive inventions and have provided
`large numbers of American workers with good jobs
`through the development and commercialization of
`those patents are not the ones that have created the
`business method patent problem. While merely having
`employees and conducting business would not disqualify
`a patent-holder from Section 18 review, generally
`speaking, it is not the understanding of Congress that
`such patents would be reviewed and invalidated
`
`
`
`3
`
`

`

`under Section 18. (157 Cong. Rec. § 5402, 5428)
`(emphasis added).
`Frontline is precisely the type of company Section 18 was not intended to
`
`ensnare. What began in 1996 as collaboration between Roland Thompson and
`
`Michael Blackstone, has today become Frontline Technologies, Inc., employing 90
`
`people and providing 200,000 substitute teaching placements per day to over 3,200
`
`school districts in 49 states. The Board should dismiss the petition because CRS
`
`cannot carry its burden of demonstrating that the 151 Patent is a covered business
`
`method patent.
`
`II. Background
`Before automation of the fulfillment process, location of a replacement to
`
`fill a temporary employee absence in an organization was an unreliable and labor-
`
`intensive process. Although seemingly simple in concept, the substitute fulfillment
`
`task is non-trivial, requiring managers to devote significant time, effort and other
`
`resources, with no guarantee of success.
`
`The substitute fulfillment task usually is triggered in a school when a teacher
`
`“calls in sick.” Once a teacher has called in sick or otherwise signaled his absence,
`
`the responsible administrator must disrupt her schedule to focus on the substitute
`
`fulfillment task. The administrator must determine which classes the absent
`
`teacher teaches and what skills are required of a replacement. The administrator
`
`then typically identifies acceptable substitutes from the substitutes registered with
`
`
`
`4
`
`

`

`the school district. The administrator telephones potential substitutes to check
`
`their availability and willingness to take on the assignment. Sometimes the
`
`administrator may have to telephone an individual substitute several times. If the
`
`administrator locates and confirms a substitute, the administrator may then have to
`
`inform the relevant department head or other teachers and complete paperwork to
`
`process the assignment.
`
`Before the development of Frontline’s Aesop, systems for supporting
`
`substitute fulfillment were known, although those systems utilized telephones and
`
`interactive voice prompt technology to interface with teachers and substitutes.
`
`Petitioner, CRS, sold such systems. One of the practical problems associated with
`
`such earlier systems is the requirement for a customer to purchase hardware
`
`specifically designed to receive telephone calls from teachers reporting absences
`
`and to initiate telephone calls to substitute teachers to find replacements. Such
`
`hardware systems were costly. As a result, only the larger school systems had the
`
`financial resources to purchase and maintain such systems. For school districts
`
`without sufficient resources, the old manual, labor intensive method was used.
`
`Frontline’s 151 Patent
`
`A.
`Frontline began as a collaboration between Roland Thompson and Michael
`
`Blackstone who built a thriving business around the invention claimed in the 151
`
`Patent. In 1998, Roland Thompson, who had worked as a software developer for
`
`
`
`5
`
`

`

`technical solutions as diverse as telephone-only substitute placement systems and
`
`guidance systems for computer-controlled videography, formed a partnership with
`
`Michael Blackstone to develop businesses around such new technological
`
`solutions. The videography technology was transferred to CF InFlight, LLP and
`
`developed into Skycam®, the Emmy award-winning camera system and software
`
`used principally to broadcast premier sporting events – most notably NFL and
`
`NCAA football. The substitute fulfillment technology became part of Aesop®,
`
`Frontline’s Internet-based substitute fulfillment solution.
`
`Blackstone and Thompson’s Aesop® was a telephone and Internet-based
`
`system for facilitating replacement of absent workers with substitute workers. The
`
`system received via the Internet information of an absent position, posted that
`
`information on an Internet website, received a response via the Internet from a
`
`substitute viewing the information, and secured the position via the Internet for the
`
`substitute, including in part halting fulfillment processing of the position for other
`
`substitutes. As a result of this development, substitute fulfillment could now be
`
`accomplished with only an Internet connection. Since only an Internet connection
`
`was now necessary, a computer constructed to carry out the Blackstone and
`
`Thompson development could be made available via the Internet to employers
`
`such as school districts. School districts no longer had to purchase their own
`
`computer for automated fulfillment. Automated fulfillment would no longer be
`
`
`
`6
`
`

`

`limited to the larger school districts. Blackstone and Thompson saw their
`
`development as an opportunity requiring protection.
`
`In pursuing their development, Messrs. Blackstone and Thompson sought to
`
`obtain patent protection. On January 6, 2004, the 151 Patent 6,675,151 (the “151
`
`Patent”) (Pet. Ex. 1001) (“Pet. Ex.” referring to Exhibits attached to CRS’s Petition
`
`For Transitional Post-Grant Review Under § 18 of the Leahy-Smith America
`
`Invents Act and 35 U.S.C. § 321) was duly and legally issued by the United States
`
`Patent and Trademark Office. Frontline is the assignee and owner of all rights,
`
`title, and interest in and to the 151 Patent, including the right to assert all causes of
`
`action and the right to any remedies for infringement. The 151 Patent claims
`
`priority from U.S. Patent No. 6,334,133 (the “133 Patent”) (Pet. Ex. 1003). The
`
`133 Patent was earlier filed by Messrs. Blackstone and Thompson on December
`
`21, 1998. The priority claim effectively gives the 151 Patent this same filing date,
`
`December 21, 1998.
`
`Prior Litigation For Patent Infringement
`
`B.
`On February 10, 2004, Frontline filed an action in the United States District
`
`Court for the Eastern District of Pennsylvania against CRS for infringement of the
`
`151 Patent. In November 2004, in settlement of that action, Frontline entered into
`
`the License Agreement granting CRS a limited license under the 151 Patent in
`
`exchange for payment of royalties.
`
`
`
`7
`
`

`

`Beginning in 2006, Frontline requested a review of CRS books and records
`
`supporting its royalty payments. The review identified certain underpayments; and
`
`CRS was asked for additional information. Frontline thereafter notified CRS of its
`
`material breach of the License Agreement and provided CRS with an opportunity
`
`to cure the breach. CRS did not cure the breach and repudiated its obligation to
`
`pay additional royalty. On June 15, 2007, Frontline notified CRS that the License
`
`Agreement was terminated. Frontline then filed suit against CRS on June 18, 2007
`
`for breach of the License Agreement and infringement of the 151 Patent.
`
`Pending District Court Action
`
`C.
`On August 9, 2007, CRS filed a Request for Ex Parte Reexamination in the
`
`USPTO seeking to invalidate the 151 Patent. On October 24, 2007, the USPTO
`
`granted CRS’s request for ex parte reexamination of claims 3 through 13 of the
`
`151 Patent. During reexamination of claims 3 through 15 of the 151 Patent, claims
`
`14 through 55 were added. On October 20, 2009, the PTO issued a reexamination
`
`certificate specifying that amended claims 3, 6, and 9, and added claims 14 through
`
`55, as listed in the reexamination certificate, are patentable over the references
`
`cited by CRS considered during the reexamination. (Pet. Ex. 1002).
`
`The reexamined claims were construed in the District Court Action on
`
`February 8, 2011. (Pet. Ex. 1004).
`
`
`
`8
`
`

`

`As indicated above, CRS filed this Petition in a desperate attempt to avoid
`
`trial for infringing the 151 Patent. In July 2012, the Court ruled in Frontline’s
`
`favor on all issues raised in motions for summary judgment and subsequently
`
`denied a motion by CRS to reconsider the summary judgment rulings. In
`
`November 2012, the Court issued an order directing the parties to submit pretrial
`
`memoranda, jury charges, motions in limine, and other pretrial materials. The
`
`Court also denied a preliminary request by CRS to stay the case in view of its
`
`filing a petition for covered business method review with the PTAB. The parties
`
`filed the required pretrial materials, and a mandatory settlement conference has
`
`been set with a magistrate judge. Absent settlement, Frontline expects that the case
`
`will be scheduled for trial at the earliest opportunity.
`
`Petitioner CRS’s desperate actions should not prevail. CRS’s request should
`
`be denied because CRS has not carried its burden of demonstrating that the 151
`
`Patent is a covered business method patent and has not carried its burden of
`
`demonstrating a substantial likelihood that the claims at issue are invalid under
`
`Section 101 or 112 of the Patent Act.
`
`III. Statement of the Relief Requested
`Patent Owner Frontline respectfully requests that the PTAB deny Petitioner
`
`CRS’s petition for post-grant review of claims 3, 6, 7, 16, 24, and 33 of the 151
`
`patent under Section 18 of the America Invents Act (“AIA”) because:
`
`
`
`9
`
`

`

`(1)
`
`the petition fails to demonstrate that the 151 patent is a covered
`
`business method patent under Section 18 of the AIA;
`
`(2)
`
`35 U.S.C. § 101 does not fall within the available grounds for
`
`challenging patentability in a trial under Section 18 of the AIA;
`
`(3)
`
`the petition fails to demonstrate that it is more likely than not that the
`
`claims are unpatentable under 35 U.S.C. § 101; and
`
`(4)
`
`the petition fails to demonstrate that it is more likely than not that the
`
`claims are unpatentable under 35 U.S.C. § 112, first paragraph.
`
`
`
`IV. Statement of Reasons Why No Post-Grant Review Should Be
`Instituted Under 35 U.S.C. § 324
`A. The Petition Fails to Demonstrate that the 151 Patent Is A
`Covered Business Method Patent Under Section 18 of The
`AIA
`
`Section 18 of the America Invents Act created a transitional post-grant
`
`review proceeding for a defined class of covered business method patents. A
`
`petitioner for review under Section 18 must demonstrate that she has standing to
`
`proceed. 37 C.F.R. § 42.304(a) (2012). Accordingly, the petitioner bears the
`
`burden of demonstrating that the patent for which review is sought satisfies the
`
`definition of a covered business method patent, including demonstrating that the
`
`patent is not for a technological invention. Id. The statute provides the following
`
`definition of a “covered business method patent”:
`
`
`
`10
`
`

`

`For purposes of this section, the term “covered
`business method patent” means a patent that claims a
`method or corresponding apparatus for performing data
`processing or other operations used in the practice,
`administration, or management of a financial product or
`service, except that the term does not include patents for
`technological inventions.
`Section 18(d)(1) of the Leahy–Smith America Invents Act (“AIA”) (emphasis
`
`added). The PTO adopted revised rules for implementing the transitional program
`
`for covered business method patents that incorporated the same language. 37
`
`C.F.R. § 42.301(b) (2012). As the PTO explained:
`
`The definition set forth in § 42.301(b) for a
`covered business method patent adopts the definition for
`covered business method patents provided in section
`18(d)(1) of the AIA. Specifically, the language states
`that a covered business method patent is “a patent that
`claims a method or corresponding apparatus for
`performing data processing * * *, except that the term
`does not include patents for technological inventions.”
`(Emphasis added.) Consistent with the AIA, the
`definition, as adopted, therefore is based on what the
`patent claims. Determination of whether a patent is a
`covered business method patent will be made based on
`the claims. Similarly, determination of whether a patent
`is to a technological invention will be determined based
`
`
`
`11
`
`

`

`on the claims of the patent. A patent having one or more
`claims directed to a covered business method is a
`covered business method patent for purposes of the
`review, even if the patent includes additional claims.
`
`See 77 Fed. Reg. Vol. 157 (Part IV) at 48736 (August 14, 2012) (italics emphasis
`
`and omissions in quoted source) (bold emphasis added).
`
`Careful examination of the language in the claims relied upon by CRS
`
`reveals that they are directed to a system and method of communicating and
`
`recording information about personnel scheduling. The claims show that the
`
`invention is used in securing particular people at a particular place and a particular
`
`time. But the claims are not directed to specific activities that people perform once
`
`they are placed. For purposes of applying the claims, it does not matter what the
`
`organization does, what tasks its people do, or whether they do anything that is
`
`financial or non-financial in nature. The claimed invention is equally suited for
`
`use in any organization that needs the right people at the right place at the right
`
`time. In this sense, the claims are not “directed to” but are neutral with respect to
`
`the practice, administration, or management of a financial product or service. See
`
`77 Fed. Reg. Vol. 157 (Part IV) at 48736. CRS has failed to demonstrate that what
`
`is claimed has any more relationship to financial products or services than to non-
`
`financial products or services.
`
`
`
`12
`
`

`

`CRS relies principally on Claim 11 to establish that the 151 Patent satisfies
`
`the requirements for a covered business method patent. (CRS’s Petition For
`
`Transitional Post-Grant Review Under § 18 of the Leahy-Smith America Invents
`
`Act and 35 U.S.C. § 321, hereinafter “Pet.”, at 6). However, claim 1 does not
`
`“claim” a system directed to the “practice, administration, or management of a
`
`financial product or service.” Claim 1 only claims a system directed to placement
`
`of substitute workers. There are no claim elements directed to money, financial
`
`transactions, or any type of activity that is inherently a financial product or service.
`
`Although CRS argues that the presence of the word “bank” in claim 1 is
`
`dispositive, nothing in the claim language indicates that the claimed method is
`
`directed to a financial product or service in a bank or elsewhere. Rather, the claims
`
`are directed to personnel scheduling in various kinds of organizations of which a
`
`bank is merely one example. As CRS acknowledges, the patent specification
`
`shows that “the claimed service can apply across professional disciplines.” (Pet. at
`
`6, citing Pet. Ex. 1001 at col. 1–2, ll.60–68, 1–4).
`
`The language in claim 1 does not create a nexus between the claimed
`
`method and any financial product or service. The method could, for example, be
`
`used in scheduling a “candy striper” volunteering at a hospital or a fireman at a
`
`1 Claim 1 has not been asserted against CRS in the litigation pending in the Eastern
`
`District of Pennsylvania. It was also not subject to reexamination.
`
`
`
`13
`
`

`

`volunteer fire department, neither of which involve any sort of financial product or
`
`service as required by the statute. It is at least curious that CRS brings its petition
`
`for covered business method patent review when CRS itself is not in the business
`
`of financial products and services, but rather competes with Patent Owner
`
`Frontline in the education substitute fulfillment market.
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`Contrary to CRS’s argument, claims 3 and 6 also are not directed to any
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`financial product or service. (Pet. at 6-7). CRS admits this when it acknowledges
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`that independent claims 3 and 6 “do not contain an express reference to banks,” but
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`nevertheless argues that because they use “generic terms like ‘substitute workers’
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`and ‘organizations’ without specifying a field of use” the claims are “broad enough
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`on their face to cover methods and systems that provide substitute workers for
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`banking and other financial organizations.” (Pet. at 6-7). The inventors did not
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`frame the claims in terms of what the people placed by their system and method
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`would be doing once they were placed. Therefore the claims are neutral with
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`respect to financial activity or non-financial activity. The possibility of the
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`claimed invention being used in the management of financial products or services
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`is not enough to satisfy the requirements for review.
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`Similarly, CRS’s argument based on classification under Class 705 proves
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`nothing. (Pet. at 7-8). Class 705 encompasses:
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`“apparatus and corresponding methods for
`performing data processing operations, in which there is
`a significant change in the data or for performing
`calculation operations wherein the apparatus or method is
`uniquely designed for or utilized in the practice,
`administration, or management of an enterprise, or in the
`processing of financial data.”
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`See Class 705 Definition, USPTO Manual of Classification (2012) (emphasis
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`added). If Congress had intended Section 18 of the AIA to correspond to the scope
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`of Class 705, it easily could have incorporated the same language or provided for
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`review of all business method patents. Instead, Congress chose to provide review
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`for a defined class of “covered business method patents.” Rather than using the
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`broader language of Class 705 describing management of “an enterprise,” the
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`definition for covered business method patents adopts a variation of the Class 705
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`definition directed to a method or apparatus “used in the practice, administration,
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`or management of a financial product or service.” The change suggests that the
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`statutory definition should not encompass all business method patents “utilized in
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`the practice, administration, or management of an enterprise” but only those “used
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`in the practice, administration, or management of financial products or services.”
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`Because the claims of the ‘151 Patent on which CRS relies are directed to
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`substitute placement for organizations generally, but not to management of
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`financial products or services in particular, CRS’s argument fails to show that the
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`patent falls within the statutory definition of a covered business method patent.
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`Finally, under the circumstances, instituting review would be contrary to the
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`legislative intent underlying the AIA. First, Frontline is not the sort of non-
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`practicing entity “troll” that prompted Section 18. Frontline has risen from a
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`startup to become the leading provider of substitute fulfillment products and
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`services to schools throughout the United States. It employs 90 people who
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`service its customers nationwide principally from the company headquarters in
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`suburban Philadelphia. It sued CRS in district court to protect against infringement
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`by an entrenched business competitor. Second, the prosecution history and
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`reexamination of the 151 Patent shows that it is not a poor-quality patent targeted
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`by Section 18. Third, instituting review runs contrary to judicial and
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`administrative efficiency. Frontline’s case against CRS has been pending four-
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`and-a-half years and is ready for trial. A trial will be necessary on Frontline’s
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`breach of contract claim regardless of whether the patent infringement claim is
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`included. See American Sterilizer Co. v. Sybron Corp., 614 F.2d 890, 897-98 (3d
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`Cir. 1980). Instituting a pos