Patent 7,062,749  
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`Case CBM2015-00049
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`Hewlett-Packard Company,
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`Petitioner,
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`v.
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`YYZ LLC,
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`Patent Owner.
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`____________
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`Case CBM2015-00050
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`Patent 7,603,674
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`____________
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`PATENT OWNER YYZ LLC’S PRELIMINARY RESPONSE
`PURSUANT TO 37 C.F.R. §42.107
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`Case CBM2015-00049
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`Patent 7,062,749  
`I.  
`INTRODUCTION  ...............................................................................................................................  3  
`A.   The ‘674 Patent  ..............................................................................................................................  4  
`1.  
`  Background of the Technological Problem  .....................................................................  4  
`2. The Solutions of the ‘674 Patent  .........................................................................................  7  
`3. Illustrative Claim  .....................................................................................................................  9  
`B.   Prosecution History  ....................................................................................................................  10  
`1.   Original Prosecution  .............................................................................................................  11  
`2.   Ex Parte Reexamination Prosecution History  ...............................................................  11  
`II.   THE BOARD SHOULD DENY INSTITUTION  ................................................................  15  
`A.   Petitioner Lacks Standing to bring this Action  .................................................................  15  
`1.   The Claims Are Directed to Technology Common in Business Environments
`Across Sectors  ...................................................................................................................................  16  
`2.   The Written Description Does Not Support Petitioner’s Position  ..........................  19  
`3.   The Claims Are For a Technological Invention  ...........................................................  25  
`4.   The Patent Solves a Technological Problem  .................................................................  30  
`B.   Petitioner’s Claim Construction Ignored the Reexamination  .......................................  32  
`C.   Petitioner’s 101 Attack Ignores the Words of the Claims and the Findings of the
`Reexamination  .......................................................................................................................................  32  
`D.   Petitioner’s eSleuth Attack Ignores the Reexamination  ................................................  35  
`E.   Petitioner’s Combined References Don’t Work  ...............................................................  38  
`III.   CONCLUSION  ...............................................................................................................................  40  
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`Table of Contents
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`Exhibit List
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`Ex. 2001 - US Patent No. 7,003,781 issued to Blackwell et al.
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`Patent 7,062,749  
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`Case CBM2015-00049
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`I.
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`INTRODUCTION
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`Patent Owner, YYZ LLC, (“Patent Owner”) submits the following
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`preliminary response to the Petition for Covered Business Method Review
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`under 35 U.S.C. § 321 filed on December 22, 2014 (“the Petition”) by
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`Hewlett Packard Company (“Petitioner”) seeking CBM review and
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`cancellation of claims 51-52 and 55-57 of U.S. Patent No. 7,603,674 (“the
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`’674 patent” or “the Patent”) owned by YYZ, LLC . This response is timely
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`pursuant to the Board’s Notice in Paper No. 3.
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`The Board should decline to institute a covered business method
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`review for four reasons.
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`First, the Board should reject the Petition because, as discussed
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`below, the Petitioner fails to carry its burden that the claims at issue are a
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`covered business method. In fact, Petitioner fails to show any evidence at all
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`in support of its argument.
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`Second, the Board should reject Petitioner’s 35 U.S.C. § 101 attack.
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`As discussed below, Petitioner’s § 101 argument both: a) ignores the words
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`of the claims of the ‘674 Patent; and, b) ignores statements in the
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`prosecution history construing the claims, including both the original
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`prosecution and an ex parte Reexamination, Control No. 90/009,961 (“the
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`Reexamination.”)
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`Third, the Board should reject the use of Petitioner’s eSleuth product
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`as a prior art reference under 35 U.S.C. §§ 102 and 103, because as
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`discussed below, the Petition raises the same issues and features that the
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`Office had already thoroughly considered during the Reexamination.
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`Fourth, the Board should reject the 35 U.S.C. § 103 attack on the
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`Patent using a combination of the IBM MQSeries Integrator (“MQI”) and
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`Linthicum references, as discussed below. The Linthicum references are
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`exactly the opposite of Petitioner's claim and neither reference supports the
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`combination.
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`Accordingly it is submitted, the Board should deny institution of
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`review of the ‘674 Patent.
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`A. The ‘674 Patent
`1.
`Background of the Technological Problem
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`The ‘674 Patent relates to an apparatus and systems for measuring,
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`monitoring, tracking and simulating enterprise communications and
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`processes in an asynchronous messaging environment. (The ‘674 Patent,
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`Pet. Ex. 1001, 1:14-20.)
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`Communications in an enterprise used to be primarily synchronous, or
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`connection oriented, in which a connection is established with prior
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`coordination between communication end points with data then being
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`transmitted over the connection. Enterprise communications have now
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`become increasingly asynchronous, or connectionless, however, transmitting
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`data without prior coordination between communication end points, such as
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`through "event based" communications which use messages to move data
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`instead of large files, permitting more flexibility in assembling and
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`modifying enterprise communications. (‘674 Patent, 1:48-57)
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`However, although the flexibility of an asynchronous messaging
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`based environment is desirable, asynchronous or message based
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`communications are problematic because of their loosely coupled nature; for
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`example messages may be in transit and not instantly locatable so their
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`stauts data isn’t known, so that an enterprise that uses an asynchronous
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`messaging environment for its operations or processes would have problems
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`attempting to monitor the operations or processes. (‘674 Patent, 2:14-25)
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`An enterprise or business, for example, may use a process known as
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`Order To Cash. Figure 1 of the patent shows such a business process,
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`comprised of various sub processes: Receive Order Inquiry, Provide
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`Customer Quotation, Create Customer Outline Agreement, Create Sales
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`Order, Schedule Production, Manufacture Product, Ship Product and Invoice
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`Customer sub processes. (‘674 Patent, 3:43-48)
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`The small horizontal arrows between sub processes denote the flow of
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`the process. Paths A, B, C, etc. are for messages sent between the sub
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`processes of the process. They communicate through a messaging broker,
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`such as an IBM MQSeries component, in an asynchronous messaging
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`environment. (‘674 Patent, 3:49-53)
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` There is no ability to locate messages on the paths as they are in
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`transit and no end point for their information. Hence, there is no ability to
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`monitor the progress or the status of processes and sub processes in the
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`environment. (‘674 Patent, 2:14-25)
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`2.
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`The Solutions of the ‘674 Patent
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`The ‘674 Patent offers solutions to the above issues. As noted in the
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`Summary of the Invention:
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`The present invention comprises apparatus and systems for
`measuring, monitoring, tracking and simulating enterprise
`communications and processes in an asynchronous messaging
`environment. For each original message sent within a process, sub-
`process or activity, the preferred embodiments of the present
`invention send a separate monitoring message containing data from
`the central message repository or database. This data may include
`date, time, customer number, materials, quantity, amount, or other
`information, and be copied from the original message. Other
`embodiments may add data to the monitoring message aside from that
`contained in the original message.
`This central message repository or database is comprised of
`information passing through the enterprise. In effect, the database
`provides a collection point or an "end point" for the asynchronous
`communications, and so allows the flexibility of asynchronous
`communications to be combined with the precision of synchronous
`communications. (‘674 Patent, 2:8-25)
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`Figure 2 of the patent shows a preferred embodiment being used in an
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`Order To Cash process:
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`A messaging component is added to the messaging broker, which
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`creates a "monitoring" message for each original message received by the
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`broker. This monitoring message contains data, called “original message
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`data” generated from the original messages passing between the sub-
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`processes. The monitoring message with its original message data is then
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`sent from the messaging broker to the central database repository providing
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`a collection point or an "end point" for the data, which then may be reviewed
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`if desired. (‘674 Patent, 3:56-64)
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`
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`Thus solutions for the asynchronous messaging environment status
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`data problems are taught by the ‘674 Patent, which allows the flexibility of
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`asynchronous communications to be combined with the precision of
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`synchronous communications. (‘674 Patent, 3:21-25)
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`3. Illustrative Claim
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`Claims 51-52 and 55-57 are in the Petition. Claim 51 is the
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`independent claim:
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`51. A computerized method for use in an asynchronous
`messaging environment, wherein said messaging environment
`comprises at least one original message comprised of
`original message data, comprising:
`providing, through a monitoring message, at least part of
`said original message data to a central message repository;
`populating a transaction record in said central message
`repository with said original message data provided by
`said monitoring message;
`reviewing data collected in said transaction record;
`wherein said original message data comprises status information of a
`process and/or subprocess.
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`52. A method as in claim 51 wherein said original message
`40 data comprises at least one field of data selected from the
`group consisting of date data, time data, customer number
`data, materials data, quantity data and amount data.
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`Time.
`55. A method as in claim 51 further comprising providing
`the status of a process by providing access to said central
`message repository.
`56. A method as in claim 51 further comprising adding, to
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`said monitoring message, data other than said original message
`data.
`57. A method as in claim 51 further comprising updating
`said transaction record.
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`27. A method as in claim 22 further comprising reviewing said central
`message repository.
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`28. A method as in claim 27 wherein reviewing said central message
`repository further comprises reviewing information from the group
`consisting of order information, customer information, process
`efficiency information, snapshot information, time slice information,
`daily information, weekly information, monthly information, trend
`information and performance information.
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`29. A method as in claim 22 further comprising distributing process
`progress information in real time.
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`B.
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`Prosecution History
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`The Prosecution History of the ‘674 Patent comprises a first
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`
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`prosecution that resulted in issuance of the Patent (the “Original
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`Prosecution”) with 173 claims as well as the Reexamination, which resulted
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`in confirmation of all 173 claims of the ‘674 Patent.
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`1.
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`Original Prosecution
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`The ‘674 Patent was filed April 5, 2006, as a continuation of the
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`parent, U.S. Parent 7,062,749 (in copending CBM 2014-00049) and
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`assigned application number 11/398,133. Some minor amendments
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`occurred, and a notice of allowance for all claims was issued on June 22,
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`2009, allowing all claims 1-173. (Notice of Allowance, 2/22/2006, Id.)
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`The Patent issued on October 13, 2009. (Pet. Ex. 1001)
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`2.
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`Ex Parte Reexamination Prosecution History
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`On November 1, 2011, a request for reexamination of the ‘674 Patent
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`(and the ‘674 Patent) was filed by OpenText, Inc. (then in litigation with
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`Patent Owner over an infringement claim) with the USPTO. The
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`reexaminations sought to raise a substantial new question of patentability of
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`the ‘674 Patent over six references, including US Patent No. 7,003,781
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`issued to Blackwell et al., Ex. 2001 (hereafter "Blackwell.") (eSleuth
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`asserted here by Petitioner, is the commercial embodiment of Blackwell.)
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`(Corrected Original Ex Parte Request, 11/1/2011, Pet. Ex. 1003.)
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`In its Order granting reexamination, the Office noted that:
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`Blackwell teaches, among other things:
`- an asynchronous messaging environment,
`- [with] messages are passed between applications using MQSeries[,]
`- [with] a sensor monitoring API calls from a user application to a
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`queue manager including MQPUT and MQGET. API calls include a
`message header and a message buffer containing the message itself;
`- [wherein] intercepting an API call and generating an event
`comprising all or a portion of the data of the original message [and]
`discloses sending an event message containing the event to a database
`for storage. The event message is a monitoring message, containing
`original message data. The event message is stored in a database.
`Since these teachings are directly related to subject matter considered
`as the basis for allowability of the patent claims, therefore Blackwell
`reference raised a substantial new question of patentability with
`respect [to the claims here.]
`(Order Granting Request For Ex Parte Reexamination, 12/1/2011, Id.)
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`As to all the references the Order said that "the evaluation of a prior
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`art reference (or combination of references) that teaches or suggests a central
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`message repository or providing, through a monitoring message, at least part
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`of said original message data, would raise a substantial new question of
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`patentability." (Id.)
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`Patent Owner filed an Owner’s Statement and argued, inter alia,
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`Blackwell was antedated by the inventors’ declarations showing conception
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`at least as early as December 31, 1999, with diligent effort towards reduction
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`to practice. (Owner’s Statement, 2-1-2012, Id.)
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`The Office then filed a Non Final Rejection, finding the date of
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`conception was March 9, 2000, but leaving the due diligence issue open.
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`(Non-Final Action, 6/14/2012, Id. )
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`In an Interview held after the Non Final Action, Patent Owner
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`addressed Blackwell and the other references on the merits, arguing the prior
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`art references failed to disclose “providing, through a monitoring message,
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`at least part of said original message data to a central message repository"
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`and "populating a transaction record in said central message repository with
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`said original message data provided by said monitoring message."
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`(Examiner Interview Summary Record, 8/7/2012, Id.; Patent owner
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`Summary Of Interview, 8/14/2012, Id.) Patent Owner also filed its
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`Response to the Non Final Action, again arguing the Blackwell rejection on
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`the merits, as well as providing additional evidence regarding due diligence.
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`(Response to Non Final Action, 8/14/,2012, Id.) A Final Rejection as to all
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`claims was issued September 18, 2012. An Interview followed the Final
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`Rejection on November 14, 2012. (Examiner Interview Summary Record,
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`12/21/2012, Id.; Patent Owner Summary Of Interview, 11/19/2012, Id.)
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`On November 19, 2012, Patent Owner filed its Response to Final
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`Rejection (Response to Final, 11/19/2012, Id.) and on December 21, 2012
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`the Office issued its Response to Arguments, including its Statement of
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`Reasons for Patentability and/or Confirmation, agreeing with Patent
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`Owner’s arguments as to Blackwell and the scope of the claims more
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`generally:
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`With regard to the Blackwell reference, PO argues that
`Blackwell does not teach or suggest a monitoring message or a
`central message repository (Response To Final Office
`Action:Page 5). PO argues that the sensors 14 of Blackwell
`intercept function or API calls and create an event from the
`calls, but they do not create monitoring messages. In light of
`PO's arguments and upon further examination of Blackwell in
`view of the definition discussed above, the Examiner agrees
`with PO. Blackwell teaches a plurality of sensors in a
`distributed data processing system, wherein the sensors act as
`agents that reside in the space of a monitored application and
`operate to collect information on calls that particular sensor is
`monitoring (Blackwell: column 4, lines 55-62; column 5, lines
`14-35). Blackwell further teaches that each sensor is associated
`with filter rules that determine the conditions which trigger
`event generation/reporting as well as the amount of information
`to be collected (Blackwell: column 5, lines 50-56; column 15,
`lines 28-45). However, the plurality of sensors of Blackwell
`cannot reasonably be equated with a messaging component of
`the centralized messaging broker of the invention necessary to
`create monitoring messages and therefore the event data
`generated by the sensors are by definition not monitoring
`messages as required by the claims.
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`(Response to Arguments, 12/21/2012, p. 5-6, Id.)
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`The Office also agreed with that Patent Owner that the prior art did
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`not teach generating a monitoring message, wherein the monitoring message
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`with original message data was created by a messaging component of a
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`messaging broker, and providing the monitoring message to a central
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`message repository. Response to Arguments, 12/21/2012, p. 2-3, Id. (In
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`light of its finding Blackwell was not art, the Office also dismissed the due
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`diligence matter as “moot.”)
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`All 173 claims of the ‘674 Patent were confirmed.
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`II. THE BOARD SHOULD DENY INSTITUTION
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`A. Petitioner Lacks Standing to bring this Action
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`Under § 18(a)(1)(E) of the AIA, the Board may institute a transitional
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`proceeding only for a patent that is a covered business method (“CBM”)
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`patent. Section 18(d)(1) of the AIA defines the term “covered business
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`method patent” (“CBM patent”) to mean:
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`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.
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`The analysis is based on the claim. Id., J.P. Morgan Chase and Co. v.
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`Intellectual Ventures II LLC, CBM2014-00160, Paper 11 at 11 (PTAB
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`January 29, 2015) (“[F]or purposes of determining whether a patent is
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`eligible for review as a CBM patent, we focus on the claims,” citing 77 Fed.
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`Reg. at 48,736 (Response to Comment 8) (“Determination of whether a
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`patent is a covered business method patent will be made based on the
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`claims.”)
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`Petitioner bears the burden of proof, which requires “demonstration
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`that it is more likely than not that at least 1 of the claims challenged in the
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`petition is unpatentable.” 35 U.S.C. § 324; JP Morgan, Paper 11 at 2; Par
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`Pharmaceuticals, Inc. v. Jazz Pharmaceuticals, Inc., CBM2014-00149,
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`Paper 11 at 2 (PTAB January 13, 2015.
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`The Board should deny institution because Petitioner fails to
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`demonstrate that it is more likely than not that the claims under attack are
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`unpatentable by failing to provide any authority or evidence. The little
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`“evidence” that Petitioner provides misquotes the Patent and so is not
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`competent evidence.
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`The Claims Are Directed to Technology Common in Business
`1.
`Environments Across Sectors
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`Petitioner’s argument and its “evidence” in support is at pages 4-7 of
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`its Petition.
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`Petitioner begins its argument by acknowledging that no claim of the
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`Patent expressly recites financially related elements. Petition at 5. That
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`admission alone, is enough, under the authority of Salesforce.com, Inc. v.
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`Applications in Internet Time, LLC, CBM2014-00162 Paper 11 (PTAB, Feb.
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`2, 2015) to deny the petition here. As the Board noted in Salesforce:
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`Neither [the challenged claim] nor any of its dependent claims
`expressly claims an apparatus “for performing data processing or
`other operations used in the practice, administration, or management
`of a financial product or service. Indeed, the claims on their face
`are directed to technology “common in business environments
`across sectors” with “no particular relation to the financial
`services sector,” which the legislative history indicates is outside
`the scope of covered business method patent review. 157 Cong.
`Rec. S5441 (daily ed. Sept. 8, 2011) (statement of Sen. Leahy)
`(emphasis added.)
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`The claims here are precisely are were the claims in Salesforce –
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`claims directed to technology “common in business environments across
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`sectors” with “no particular relation to the financial services sector.”
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`JP Morgan is to the same effect. The challenged claims involved
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`public key certification. The Board found the claims at issue: “have general
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`utility not limited or specific to any application…electronic transactions,
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`escrow agencies, clearing houses, and notaries [who may use the method of
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`the claims] are not specific to financial transactions and cover various types
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`of transactions separate from financial transactions.” JP Morgan, Paper 11
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`at 2. The Board found that there was no CBM jurisdiction and, cited,
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`apparently with approval, the Patent Owner’s statement about the scope of
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`the statute:
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`Patent Owner asserts the widespread use of public key certificates in
`electronic financial transactions is immaterial and comparable to
`asserting that a patent on a stapler would qualify as a CBM patent
`because most financial service firms use staplers to collate financial
`documents. Id. at 10.
`Similarly the inventions of the claims1 involving messaging
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`technology are like a stapler – messaging technology is used in business
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`                                                                                                                
`1  Petitioner also refers to claim 52 specifically, in that it provides for review
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`of Order Information. But that is also a business operation – common in the
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`business environment as is the review of transaction information – in claim
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`64 which is not under review here but which Petitioner also notes. Finally
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`Petitioner mentions review for stock analysis but that is clearly not a CBM –
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`Congress specifically excepted trading tools. See, e.g., 157 Cong. Rec.
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`processes and financial service firms, is technology “common in business
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`environments across sectors” and so is outside the statute. Par
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`Pharmaceuticals is to that exact effect. The messaging technology in Par
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`Pharmaceuticals was SMTP authentication, also a technology common
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`across business sectors. The PTAB determined there was no CBM
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`jurisdiction: “The claimed method… has no particular relation to the
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`financial services industry and does not relate to just a financial product or
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`service rather than to an enterprise, i.e., a conventional business
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`organization.” Par Pharmaceuticals, Paper 11 at 2. The Par
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`Pharmaceuticals Board noted the “absence of the required clear and
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`compelling evidence of legislative intent to include any business method
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`“used in commerce” within the definition of a “covered business method
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`patent” pursuant to AIA §18(d)(1).”
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`The Written Description Does Not Support Petitioner’s Position
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`2.
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`Undeterred by its inability to show explicit recitation of financially
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`related elements in the claims, Petitioner seeks to prove financially related
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`elements are recited in the written description. Here too the Petitioner
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`S5428 (daily ed. September 8, 2011)(statements of Sen. Schumer and Sen.
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`Durbin).
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`cannot prove jurisdiction. See Salesforce, where the Petitioner also tried to
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`make up for the lack of explicit references in the claims by using passages
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`from the written description of the patent. The Board rejected the attempt:
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`Petitioner’s contentions based on the written description alone do not
`show that the ’111 patent claims a method or apparatus “for
`performing data processing or other operations used in the practice,
`administration, or management of a financial product or service” or
`claims an activity that is “financial in nature, incidental to a financial
`activity or complementary to a financial activity.” Paper 11 at 9.
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`As in Salesforce, Petitioner “does not explain how the passages from
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`the written description of the [’674] patent relates to the practice,
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`administration, or management of a financial product or service, as required
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`by section 18(d)(1) of the AIA.”
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`In fact, Petitioner’s case here is even weaker than Salesforce. The
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`passages Petitioner claims are in the written description to carry its burden
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`don’t – because Petitioner doesn’t even quote the Patent accurately (nor does
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`Petitioner’s expert, Dr. Jacobson.)2
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`                                                                                                                
`2  Petitioner’s authority offers no support for its position that a Written
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`Description alone can determine CBM jurisdiction. The Federal Register
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`says nothing to support Petitioner’s claim, and the CRS Financial case (CRS
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`Case CBM2015-00049
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`For example, Petitioner’s allegation at page 5 of its Petition (and Dr.
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`Jacobson’s allegation at para. 22 of his declaration) – that the ‘674 Patent
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`has only one embodiment called Order to Cash, shown in Figure 1 – is
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`wrong. Figure 1 does not show an embodiment, it shows a process, defined
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`as a business operation. See, e.g., above, and the ‘674 Patent, including the
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`Brief Description of the Drawings: “FIG. 1 shows a view of a process.”
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`That process is, as noted above, a business process or operation – and not an
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`embodiment. Petitioner is wrong in alleging it is. Petitioner’s expert, Dr.
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`Jacobson is wrong in alleging it is.
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`In fact, there are many embodiments, not just one, specifically
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`identified in the Patent. See, for example, the Patent’s Brief Description Of
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`The Drawings:
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`FIG. 2 shows a view of a process of a preferred embodiment.
`FIG. 3 shows a screen of a preferred embodiment.
`FIG. 4 shows a screen of a preferred embodiment.
`FIG. 5 shows a screen of a preferred embodiment.
`FIG. 6 shows a partial view of a preferred embodiment.
`FIG. 7 shows a partial view of a preferred embodiment.
`FIG. 8 shows a partial view of a preferred embodiment.
`FIG. 9 shows a partial view of a preferred embodiment.
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`                                                                                                                                                                                                                                                                                                                                          
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`Advanced Techs., Inc. v. Frontline Techs., Inc., CBM2012-00005, Paper 17
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`(PTAB Jan. 23, 2013) is about a patent having claims about replacement
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`staffing for a bank, which sells financial products and services.
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`FIG. 10 shows a partial view of a preferred embodiment.
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`(emphasis added.)
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`Summary of The Invention: “…Other embodiments may add data to
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`the monitoring message aside from that contained in the original
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`message…[S]ome preferred embodiments may wish to create mirror
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`databases or other databases that can be used in various ways” (emphasis
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`added). (‘674 Patent, 3:12-34; 3-25-28)
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`Detailed Description of the Preferred Embodiments: “Other
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`preferred embodiments may alter or add data to the monitoring messages
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`aside from that contained in the original message.” (‘674 Patent, 4:18-20);
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`“Of course, some, all or none of these fields may be present in other
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`embodiments, as well as other fields as desired. For example, one or more
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`ACTIVITY IDENTIFIER fields may be present in monitoring messages in
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`other embodiments.” (‘674 Patent, 4:51-55); “Monitoring message
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`database(s) may be used, in some embodiments, in various ways, either in
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`addition to or instead of central message database(s.)” (‘674 Patent, 5:58-
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`61); “Other events, exceptions, triggers and thresholds, could be tracked as
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`well in various embodiments and be used to signal conditions, problems,
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`etc. by various methods such as ‘flagged’ or specially designated messages
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`or other indicators.” (‘674 Patent, 6:2-8). (emphasis added) (These are not
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`all the embodiments identified in the patent (and in fact the number of
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`embodiments of a claim may be infinite.)
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`Therefore, Figure 1 shows a process, not an embodiment, and, there
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`are many embodiments, explicit and implicit, in the Patent. Therefore,
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`Petitioner’s allegation that the patent has only one embodiment called Order
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`To Cash is wrong. Order to Cash is not an embodiment but a business
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`proves. The embodiments are many and may well be, as in any patent,
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`infinite.3 (Petitioner, somewhat confusingly, also refers to the “Order to
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`Cash” “embodiment” “of Figure 1 as a “financial process for receiving and
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`processing sales.” That allegation misquotes the Patent too. As noted
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`immediately above, Order To Cash is not an embodiment, but a process.
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`                                                                                                                
`3  Petitioner’s only other evidence is a further description of the “Order to
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`Cash” “embodiment” of Figure 1 as a “financ