throbber
UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`APPLE INC., EVENTBRITE INC., STARWOOD HOTELS & RESORTS
`WORLDWIDE, INC., EXPEDIA, INC., FANDANGO, LLC,
`HOTELS.COM, L.P., HOTEL TONIGHT, INC., HOTWIRE, INC.,
`KAYAK SOFTWARE CORP., OPENTABLE, INC., ORBITZ, LLC, PAPA
`JOHN’S USA, INC., STUBHUB, INC., TICKETMASTER, LLC, LIVE
`NATION ENTERTAINMENT, INC., TRAVELOCITY.COM LP,
`WANDERSPOT LLC, AGILYSYS, INC., DOMINO’S PIZZA, INC.,
`DOMINO’S PIZZA, LLC, HILTON RESORTS CORPORATION,
`HILTON WORLDWIDE, INC., HILTON INTERNATIONAL CO., MOBO
`SYSTEMS, INC., PIZZA HUT OF AMERICA, INC., PIZZA HUT, INC.,
`and USABLENET, INC.,
`Petitioner,
`
`v.
`
`AMERANTH, INC.,
`
`Patent Owner.
`
`
`
`Case CBM CBM2015-000821
`Patent 6,871,325
`
`
`
`PETITIONER’S REPLY BRIEF
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`
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`WEST\268720795.1
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`1 CBM2015-00097 has been consolidated with this proceeding.
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`I.
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`
`INTRODUCTION
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`Patent Owner Ameranth’s (“PO”) arguments in its Corrected Patent Owner
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`Response (“POR”) all fail. DeLorme’s system synchronizes applications and data
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`by sharing data between applications; its WCU is a handheld device that inherently
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`stores hospitality applications and data; its Interface & Interactions Bus includes
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`software and is a communications control module that routes communications to a
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`WCU and an internet-only desktop PC embodiment in the same system; and its
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`hospitality applications are integrated via an API with third-party outside applica-
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`tions. PO’s evidence of secondary considerations is defective for lack of nexus and
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`other reasons, and fails to overcome the strong showing of obviousness over
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`DeLorme.
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`II. ARGUMENT
`A. DeLorme Discloses “wherein the applications and data are
`synchronized between” The Four Claimed Entities
`
`PO’s primary argument is that the Petition fails to show that DeLorme
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`discloses “wherein the applications and data are synchronized between the central
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`database, at least one wireless handheld computing device, at least one web server
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`and at least one web page”2 (the “Synchronization Clause”) as recited in claims 11
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`and 13. POR at 16-30. The Petition established that Synchronization Clause should
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`be construed to mean that “the same data is present on each of the central database,
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`2 Unless otherwise indicated, all emphases herein were added by Petitioner.
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`at least one wireless handheld computing device, at least one web server and at
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`least one web page at the same time.” Pet. at 23-24. This construction was
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`supported by the declaration of Dr. Turnbull, who explained that a POSITA would
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`understand synchronization of data and applications among the four claimed
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`entities as requiring the sharing of data between those four entities. Ex. 1002 ¶¶ 81-
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`83. Consistent with this construction, the Petition establishes that DeLorme
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`discloses such sharing of data between the four claimed entities. Pet. at 56-57.
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`In its POR, PO does not dispute Petitioner’s showing that DeLorme
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`discloses synchronizing data among the four entities recited in the Synchronization
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`Clause. PO has thus waived any such argument.3 Rather, PO appears to argue that
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`applications cannot be synchronized by synchronizing the data used by those
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`applications. See, e.g., POR at 17 n.13 (“one of the fundamental aspects of the
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`claims, i.e., that both the ‘applications’ and the ‘data’ are synchronized, not merely
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`the ‘data’”; emphasis in original). PO is clearly wrong. Claim 16 of the ’850
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`patent, which shares a common specification, establishes that one way in which
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`applications can be synchronized is by sharing data. Claim 16 recites:
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`16. The information management and synchronous communications
`system of claim 12 wherein the applications and data are
`
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`3 Paper No. 14 (Scheduling Order) at 3 (“The patent owner is cautioned that any
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`arguments for patentability not raised in the response will be deemed waived.”).
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`synchronized by digital data transmission between the central
`database, at least one wireless handheld computing device, at least one
`Web Server and at least one Web page.
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`Ex. 1001 at 16:42-47. Because claim 12 includes the identical Synchronization
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`Clause (Ex. 1001 at 16:15-17), and because claim 16 is a species of the genus of
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`claim 12, nothing more than transmitting digital data is required to synchronize
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`applications. The Synchronization Clause should be construed the same way in the
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`’325 patent. See Biovail Corp. v. Andrx Pharms., Inc., 239 F.3d 1297, 1301 (Fed.
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`Cir. 2001) (claim language “must be read consistently with the totality of the
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`patent's applicable prosecution history,” including parent applications).
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`Synchronizing applications and data through the transmission of only data as
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`recited in claim 16 of the ’850 patent is consistent with the teachings of the ’325
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`patent. The ’325 patent lacks any disclosure of synchronizing applications in any
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`other manner. Instead, the ’325 patent teaches that sharing data among applications
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`stored on the four claimed entities is how to synchronize the applications:
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`The synchronous communications control module ... provides a single
`point of entry for all hospitality applications to communicate with one
`another wirelessly or over the Web ... The single point of entry works
`to keep all wireless handheld devices and linked Web sites in synch
`with the backoffice server (central database) so that the different
`components are in equilibrium at any given time and an overall
`consistency is achieved. For example, a reservation made online is
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`automatically communicated to the backoffice server which then
`synchronizes with all the wireless handheld devices wirelessly.
`Similarly, changes made on any of the wireless handheld devices will
`be reflected instantaneously on the backoffice server and the other
`handheld devices. Ex. 1003 at 11:37-55.
`
`Nothing in this passage discusses the transmission of anything other than data to
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`keep the applications in the central database in sync with those on the wireless
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`handheld devices and web pages. Ex. 1070 ¶¶ 5-11; see also ID at ¶¶ 12-17.
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`
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`While PO repeatedly criticizes the Petition and Dr. Turnbull for allegedly
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`“reading out” the requirement to synchronize applications, it is telling that the POR
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`does not articulate exactly what is required to synchronize an application. The
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`closest the POR comes is providing an “example” of application synchronization:
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`Data is communicated from both sides (client and server), but
`software/applications are not synchronized between the server and
`WCU client. Thus, for example, the updating of a restaurant menu to
`achieve “consistency” between the wireless handheld device of claim
`element “b” and the central database so that the updated menu is
`synchronized with the central database and then “stored” as part of
`the hospitality application on the handheld to facilitate future
`ordering, was not taught by DeLorme, nor possible with the DeLorme
`WCU. There is no mention in DeLorme of synchronizing application
`software between server side and client side.
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`POR at 21-22. PO seemingly contends that sending menu data from the central
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`database and storing it on the wireless device as part of the hospitality application
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`is how an application can be synchronized. But PO admits that this is just an
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`example which does not preclude other ways of synchronizing applications. In this
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`regard, the Board previously held the claims are not limited to a wireless device
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`with a locally stored database, but also encompass wireless devices without a
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`locally stored database. Ex. 1068 at 18-19. Moreover, the ’325 patent does not
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`disclose storing menu data or a menu database as part of a hospitality application
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`(POR at 21), or any way of synchronizing applications other than through trans-
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`mission of data. Thus, nothing in the specification precludes synchronizing both
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`data and applications by transmitting only data as recited in ’850 patent claim 16.
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`Furthermore, Ameranth’s expert Dr. Weaver admitted that applications can
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`be synchronized by sending updated data to a wireless device. Ex. 1076 at 149:12-
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`16. Dr. Weaver further conceded that DeLorme discloses exactly that. Id. at
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`150:10-21. While Dr. Weaver later testified that applications could only be
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`synchronized by checking whether the software on each of the claimed entities was
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`the same version, and if not, transmitting updated software code (id. at 153:3-19),
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`Dr. Weaver conceded that the patent does not describe checking software versions
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`or the transmission of updated software code. Id. at 154:9-155:4.
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`PO’s argument regarding the Synchronization Clause fails for a second
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`reason. This limitation simply requires that “applications and data are
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`synchronized.” It does not require any application on any of the four claimed
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`entities to be “updated,” or to be configured to perform updates or any other type
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`of synchronization. Under the BRI, all that is required by the claim is that the
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`applications on the four entities be synchronized. Thus, DeLorme’s disclosure of
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`the TRIPS system wherein updated data is available to each of the four recited
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`entities is a disclosure of a system in which the applications on those entities are
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`synchronized to the full extent required by claims 11 and 13.
`
`B. DeLorme’s WCU Is a Handheld Device
`PO argues that DeLorme’s WCU is not a “wireless handheld device”
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`because DeLorme’s WCU needs to be held with both hands. POR at 30-31 and
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`n.17. This argument relies on PO’s unsupported construction of handheld that is
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`limited to holding with a single hand. However, the plain meaning of handheld is
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`not so limited. Ex. 1069 (“handheld: compact enough to be used or operated while
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`being held in the hand or hands”). Even under PO’s construction, DeLorme’s
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`WCU qualifies as handheld. DeLorme explicitly discloses that WCU devices 907
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`“are typically handheld.” Ex. 1024 at 71:67-72:2 (cited in Pet. at 54). DeLorme
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`further discloses that the WCU functions can be performed, among other things, by
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`a PDA or a “smart” phone (Id. at 75:38-45), both of which are devices that can be
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`held with a single hand. Ex. 1070, ¶¶ 20-21; Ex. 1076 at 53:12-25. Finally, Fig. 9
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`depicts a user holding WCU 907 with only one hand and using his other hand only
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`to operate the device. Ex. 1024 at Fig. 9.
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`C. DeLorme’s WCU Has Stored Hospitality Applications and Data
`PO argues that “DeLorme clearly provides no disclosure of a locally-stored
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`software application and associated data for the claimed wireless device.” POR at
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`32. In making this argument, the POR contradicts its own earlier assertion:
`
`DeLorme discloses that the WCU is “programmed” to transmit data to
`the server side and to receive data back from the server side. (Exh.
`1024 75:59 et seq.). “Programmed” means that software is stored on
`the WCU.
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`POR at 21. Petitioner agrees that the WCU is programmed to transmit data to, and
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`receive data from, the server side. See also Ex. 1076 at 162:4-12. This establishes
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`that data is stored on the WCU. If data is sent from the WCU, that data is inher-
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`ently stored on the WCU prior to its transmission, and if data is received by the
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`WCU, that data is inherently stored on the WCU for some period of time after-
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`ward. Ex. 1070, ¶ 25. Similarly, DeLorme discloses electronic transfer of a “digital
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`display” to a PDA (Ex. 1024 at 18:25-32) and storage of a reservation or discount
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`coupon confirmation code on the WCU (Id. at 77:63-78:1). This is all that is
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`required by claims 11 and 13. To the extent that PO contends that some database
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`must be permanently stored on the handheld device in order to satisfy this limit-
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`ation, claims 11 and 13 are not so narrow. The Board has previously held that a
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`wireless device with a locally stored database is but one species of a genus that
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`also includes wireless devices without a locally stored database. Ex. 1068 at 18-19.
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`Petitioner also agrees with PO that DeLorme’s disclosure that the WCU is
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`“programmed” to exchange data with the server means that software is stored on
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`the WCU. POR at 21 (citing Ex. 1024 at 75:59 et seq.); Ex. 1076 at 160:12-25. In
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`addition to exchanging data with the server, this software performs other tasks,
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`including voice recognition of user inputs (Ex. 1024 at 76:46-59), conversion of
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`output to audio form (id.) and processing data from a GPS receiver (id. at 75:46-
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`59). This WCU software is an application. Ex. 1070 ¶¶ 26-27. The WCU appli-
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`cation is a hospitality application because the data exchanged with the server and
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`presented to the user is hospitality data, and because this hospitality data is ex-
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`changed using a format specific to DeLorme’s TRIPS hospitality system (Ex. 1024
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`at 73:30-41). The exchanged data relates to travel, e.g., selections of “hotel, restau-
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`rant or menu,” travel position information, reservations, etc. Ex. 1024 at 76:29-67;
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`74:2-29; Ex. 1076 at 161:24-162:3 (admitting that the WCU includes software
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`enabling users to make reservations). This data is thus hospitality data under the
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`proper BRI construction. See, e.g., Ex. 1071 at 1; Ex. 1072 at 1; Ex. 1073 at 1; Ex.
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`1070 ¶¶ 28-32. Thus, both hospitality applications and data are stored on the WCU.
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`Although DeLorme’s WCU in its non-Web form satisfies the “wireless
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`handheld device” limitations of claims 11 and 13, PO also asserts that the Board
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`sua sponte combined the “internet only” embodiment of DeLorme with the WCU
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`to arrive at an internet version of the WCU onto which java applets were installed
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`in order to satisfy the requirement for a wireless handheld device on which an
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`application is stored. POR at 36 (citing CBM2015-00080, Paper 13 at 22). As
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`shown in the Petition, such a combination would have been obvious to a POSITA,
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`who would have been motivated to make the combination and substitute an off-
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`the-shelf wireless handheld device for the WCU in order to save money by using
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`existing hardware and internet communications protocols, which were supported
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`by TRIPS. Pet. at 24-27; Ex. 1002 ¶¶ 93-99. PO fails to establish any error for the
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`following reasons.
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`First, PO overreaches by characterizing DeLorme’s disclosure of the use of
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`TRIPS data packets for WCU communications as “express restrictions and require-
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`ments” (POR at 37), asserting that “DeLorme’s WCU is antithetical to the use of
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`web pages/web browser thereon” (Id. at 40), and arguing that DeLorme “teaches
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`away” from an internet-enabled WCU (POR at 33-34). DeLorme’s description of
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`the WCU and the use of TRIPS data packets are not accompanied by any indica-
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`tion that his system was restricted to WCUs that used TRIPS data packets, or that
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`other implementations (e.g. internet implementations) were undesirable, impos-
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`sible, inoperative, or otherwise discouraged. Thus, PO’s argument that DeLorme’s
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`disclosure precludes other implementations of the WCU is legally incorrect and
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`must be rejected. MPEP § 2141.02(VI); In re Fulton, 391 F.3d 1195, 1201 (Fed.
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`Cir. 2004) (“the prior art’s mere disclosure of more than one alternative does not
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`constitute a teaching away from any of these alternatives because such disclosure
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`does not criticize, discredit, or otherwise discourage the solution claimed”);
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`IPR2012-00001, Paper No. 59, at 35; see generally Ex. 1075.
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`PO’s argument that the use of Java applets on a WCU is “directly contrary”
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`to the requirements in claims 11 and 13 for an application to be stored on the wire-
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`less device and for that application to be synchronized (POR at 41) is also flawed.
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`Once a Java applet is downloaded to the WCU, “smart cell phone” or other wire-
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`less device, it is stored on the device. There is no requirement that the application
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`be stored permanently. Notably, downloading a Java applet to the wireless device
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`constitutes synchronizing of the application on the wireless device even under
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`PO’s improperly narrow “synchronized” construction. In any event, the ability of
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`the Java applet to synchronize data with the rest of the TRIPS system is sufficient
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`under the correct construction. Ex. 1070 ¶¶ 34-36.
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`Second, PO fails to establish any procedural error in the Board’s Decision.
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`In In re Cuozzo Speed Techs., LLC, 293 F.3d 1268 (Fed. Cir. 2015)(cert. granted
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`Jan. 15, 2016), the Federal Circuit addressed a patent owner’s argument that the
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`PTAB’s final written decision relied on grounds not identified in the petition and
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`found that the “fact that the petition was defective is irrelevant because a proper
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`petition could have been drafted.” Cuozzo at 1274. All of PO’s cited cases (POR at
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`25-26) are inapposite because they involve Board decisions relying on common
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`sense or its own knowledge rather than prior art disclosures, whereas here De-
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`Lorme discloses internet embodiments and Java applets. No error has been shown.
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`D. Transmission of an Application to the Wireless Handheld Device
`Is Not Required by Claims 11 and 13
`
`PO also argues that DeLorme fails to disclose element b) of claims 11 and
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`13 because DeLorme does not disclose transmitting any applet or software code to
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`the WCU. POR at 37. This argument rests on an erroneous claim construction and
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`therefore must be rejected. Element b) simply requires “at least one wireless
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`handheld computing device on which hospitality applications and data are stored.”
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`“Store” means “to retain information in a device from which the information can
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`later be withdrawn.” Ex. 1074 at 739. Thus, the mere presence of a hospitality
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`application accessible on the wireless handheld device is all that is required under a
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`correct construction. In contrast, PO’s implied construction requiring writing the
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`application program to the wireless handheld device is wrong because claims 11
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`and 13 are device claims, not method or product-by-process claims, and the
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`language of element b, including the use of the passive voice and the absence of
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`any “configured to” or similar language, indicates that “stored” means “retained.”
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`Moreover, even if PO’s construction were correct (it is not), claims 11 and 13
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`include no requirement that such a storage operation must occur more than once.
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`Thus, DeLorme’s disclosure of an application on the WCU, which also inherently
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`discloses at least one storage operation performed on the WCU (Ex. 1070 ¶¶ 39-
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`40), is sufficient to disclose element b) under PO’s incorrect construction.
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`E. DeLorme Discloses Use of the WCU with Desktop Internet
`Embodiments
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`PO also argues that DeLorme precludes the combination of its desktop
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`online via a World Wide Web site embodiment with the non-Web WCU. POR at
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`42-43. PO is, yet again, wrong. The “entirely online” embodiment of DeLorme is
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`described as an alternative to the version of TRIPS that comes partially on a CD-
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`ROM. Both embodiments run on a desktop PC. Ex. 1024 at 14:1-52. Both embodi-
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`ments involve Web-based communications, including map data updates, special
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`discount offers, and other travel information. Id. at 14:19-42.
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`DeLorme further makes clear that the non-web WCU can be used in such
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`desktop systems that include web communications. The WCU is discussed in
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`connection with Fig. 9. DeLorme discloses that “Fig. 9 illustrates an important
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`alternative or additional embodiment of TRIPS – that permits mobile users 901, at
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`remote locations ... two-way access by wireless communications 903 to engage the
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`novel travel reservation information planning system of one or more TRIPS 904
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`communications facilities or service bureaus.” Ex. 1024 at 71:61-66. This descript-
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`tion indicates that the WCU can be used as an addition to the desktop systems dis-
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`cussed above. This indication is confirmed by DeLorme’s disclosure that the WCU
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`embodiments “can function either with or without (elation [sic, relation] to desktop
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`TRIPS user setups as described heretofore with reference to Fig. 1A” Id. at 72:20-
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`23. DeLorme thus discloses that non-Web WCUs can be used in the same system
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`as desktop PCs, and both PC embodiments (“internet only” and CD-ROM) involve
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`web-based communications.
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`DeLorme’s discussion of Fig. 4 also establishes that the WCU can be used
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`with web-based desktop embodiments. DeLorme states that the flow chart of Fig. 4
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`includes features that are preferable for the internet-only desktop embodiment. Ex.
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`1024 at 36:31-36. Later in the discussion of Fig. 4, DeLorme discloses:
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`Moreover, the Main Menu 413 and Interaction Bus 414 in FIG. 4
`correspond to, and coordinate the response to, alternative input means
`embedded in specialized TRIPS field or in-vehicle embodiments that
`typically include the wireless communication of GPS position sensor
`data along with simplified, "push-button" travel information inquiries
`sent by users actually en route or at remote locations. Such automated,
`standardized operational TRIPS sequences are further described
`hereinafter--particularly referring to FIG. 9.
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`Id. at 37:58-67. The “specialized TRIPS field or in-vehicle embodiments”
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`referenced in this passage are clearly the WCUs of Fig. 9. See id. at 71:67-72:2
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`(describing WCU mounted in a vehicle), 73:13 (WCU used in the field), 73:26-30
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`(WCU configured for push button inquiries). Thus, the discussion of the WCU and
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`the internet-only desktop embodiment in connection with Fig. 4 further indicates
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`that both can be used in the same system. Indeed, Ameranth’s expert Dr. Weaver
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`admitted that the “same” TRIPS server can be accessed by users using web
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`browsers or WCUs. Ex. 1076 at 169:3-15.
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`F. DeLorme Discloses an “Application Program Interface”
` that “Enables Integration of Outside Applications”
`
`PO makes two arguments as to why DeLorme does not disclose an appli-
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`cation program interface. Neither argument has merit. PO first makes the income-
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`prehensible argument that the claimed API must integrate outside applications with
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`hospitality applications “from within the applications themselves.” POR at 43-44
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`(emphasis in original). PO provides no support for this “within” requirement, and
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`provides no explanation as to what it means to integrate an outside application
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`with a hospitality application from within the applications. While PO cites ¶85 of
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`its expert’s declaration, that paragraph simply parrots the statements in the POR.
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`Id. The ’325 patent specification is also of no help – the only mention of the
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`claimed API are three identical references to “a well-defined application program
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`interface ("API") that enables third parties ... to fully integrate with computerized
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`hospitality applications.” Ex. 1001 at 2:16-20; 4:1-5;11:28-32. PO’s failure to
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`support or explain this argument renders Petitioner unable to respond meaningfully
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`and is sufficient reason to disregard it.
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`PO’s second argument is that TRIPS applications are not hospitality appli-
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`cations. POR at 44. This argument is also wrong because TRIPS applications are
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`hospitality applications. See infra at §2.C; Exs. 1071, 1072. That the TRIPS hospi-
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`tality applications are integrated with third-party outside applications that them-
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`selves are hospitality applications is of no moment as the Board has held that
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`“outside applications” does not preclude hospitality applications. Paper 13 at 10.
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`Additionally, the TRIPS system necessarily has an API because DeLorme
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`discloses that TRIPS is able to communicate and exchange data with outside
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`applications. Ex. 1024 at 16:5-9; 77:60-78:21; Ex. 1070 ¶¶ 52-54. As Ameranth’s
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`expert Dr. Weaver admitted, “all software operates through an API when it is
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`going to communicate over a network ...” Ex. 1076 at 80:13-20; see also 223:11-13
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`(accord); 170:2-172:16 (admitting that TRIPS communicates with outside appli-
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`cations over a network using predefined communication protocols, communication
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`formats and inputs and outputs); 225:11-24 (accord).
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`G. DeLorme Discloses a Communications Control Module (“CCM”)
`PO makes four arguments as to why DeLorme does not disclose a CCM,
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`each of which fails. First, PO argues that DeLorme’s Interface & Interaction Bus
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`209 “is not a server-side software layer.” POR at 46. However, as the Board
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`recognized, DeLorme discloses that the Interface & Interaction Bus 209 “generally
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`represents TRIPS processes for user-controlled sequencing, variable integration
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`and selective accumulation of geographic, temporal, topical and accounting travel
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`information in response to TRIPS user input travel inquiries.” Paper No. 13 at 25
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`(quoting Ex. 1024 at 31:15-19); see also Ex. 1024 at 31:24-25 (“the Interface &
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`Interaction Bus 209 also manages integrated and/or automated operations.”). Thus,
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`the Interface & Interaction Bus 209 is not merely hardware but rather includes
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`software. While there is no claim requirement that the CCM must be “server side,”
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`the Interface & Interaction Bus 209 is clearly “server side.” Ex. 1024 at Fig. 2;
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`34:26-56 (describing user logging on to TRIPS Internet site and having interactions
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`processed by Fig. 2 subsystems); Ex. 1076 at 174:13-15; Ex. 1070 ¶¶ 56-59.
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`Second, PO argues that DeLorme’s Interface & Interaction Bus 209 “does
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`not provide an interface between hospitality applications and communication
`
`protocols.” POR at 46. However, as established in the Petition at 55-56, DeLorme
`
`discloses that Bus 209 (which is also represented by the Main Menu 413 and the
`
`Interaction Bus 414) serves as an interface between retail consumers (e.g. 205 in
`
`Fig. 2) and the various server-side subsystems (i.e. applications) that comprise
`
`TRIPS (213, 217, 221 and 223 in Fig. 2). See also Ex. 1002 at ¶¶ 438-440. The
`
`Petition and Dr. Turnbull further explain that a POSITA would understand or find
`
`obvious that the Bus 209 must use different protocols to correspond with desktop
`
`users in the Web-only embodiments and WCU users communicating with the
`
`proprietary TRIPS data packets in the non-Web WCU embodiments. Pet. at 57-58;
`
`Ex. 1024 at 14:66-15:13, 73:26-45, and 73:67-74:29; Ex. 1002 ¶ 447. Ameranth’s
`
`expert concurs. Ex. 1076 at 176:17-177:12. PO’s second argument thus also fails.
`
`Third, PO argues that DeLorme’s Interface & Interaction Bus 209 “does not
`
`monitor and route communications to different devices while concurrently using
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`WEST\268081547.1
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`16
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`

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`different protocols.” POR at 46. However, as discussed above, DeLorme discloses
`
`systems including desktop users employing web-based communications (using one
`
`protocol) together with WCU users employing non-Web communications (using a
`
`different protocol). See infra at § 2.E. Interface & Interaction Bus 209 routes these
`
`communications using different protocols to the various TRIPS subsystems (i.e.
`
`applications 213-223). Ex. 1024 at Fig. 2; Ex. 1076 at 177:9-12; Ex. 1070 ¶ 64. In
`
`any event, there is no requirement for the various devices in the system of claim 12
`
`to communicate using different protocols or to do so concurrently. To the contrary,
`
`nothing in the ’325 patent precludes the use of Web-based communications proto-
`
`cols for all devices.4 See CBM2015-00091, Paper 9 at 32-33 (“[t]he only specific
`
`protocol discussed in the specification is HTTP, a web based communications
`
`4 PO’s contrary assertion is not supported by the patent. POR at 8-9 (citing Ex.
`
`1001 at 11:49-57). The cited passage describes a “simple point to point wireless
`
`capability ... which permits simple digital messages to be sent from the wireless
`
`handheld devices ... to a receiver in a beeper and/or valet parking base station.” Id.
`
`In wireless communications, point-to-point communications are direct from one
`
`device to another, without passing through any intermediate device. Ex. 1074 at
`
`574. Thus, this passage describes direct communications that do not pass through
`
`the CCM. The CCM is not involved in any protocol translation for these messages,
`
`and PO’s argument fails because it is not supported by the specification.
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`WEST\268081547.1
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`17
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`

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`protocol.”). PO’s third argument thus fails.
`
`Fourth, PO argues that DeLorme’s Interface & Interaction Bus 209 “is not ‘a
`
`software layer that sits on top of a communications protocol and acts as an inter-
`
`face between hospitality applications and the communications protocol’ as stated
`
`by the specification.” POR at 46. This supposed requirement “stated by the specifi-
`
`cation” is not recited in the claim, and PO’s improper attempt to import it into the
`
`claims should be rejected. In any event, Interface & Interaction Bus 209 includes
`
`software, does sit on top of Web-based and WCU non-Web protocols and does act
`
`as an interface between these devices and the different TRIPS subsystems/appli-
`
`cations 213-223 for the reasons discussed above. See also Ex. 1024 at 37:54-65
`
`(discussing the Main Menu 413 and Interaction Bus 414 processing both Internet
`
`and non-Web WCU transactions); Ex. 1076 at 176:17-177:12; Ex. 1070 ¶ 66.
`
`Accordingly, PO’s fourth and final argument also fails.
`
`PO also argues that ’850 patent claims 14 and 15 are not disclosed in De-
`
`Lorme. POR at 47-48. Dr. Turnbull’s declaration explained that because the TRIPS
`
`database maintains all travel and itinerary information, it would have been obvious
`
`to a POSITA that information entered on a Web page in a desktop Web embodi-
`
`ment would automatically be reflected in the form of an updated itinerary in future
`
`downloads of the itinerary to a WCU (claim 14) and vice versa (claim 15). Ex.
`
`1002 ¶¶ 227, 232 (cited in the ’850 Petition at 60-61). PO does not contest this
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`18
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`

`
`showing and thus has waived any contrary argument. Instead, PO contends that the
`
`web page and wireless handheld device cannot be satisfied by the same structure.
`
`POR at 48. But Petitioner’s showing concerns two different structures – a desktop
`
`Web-based embodiment and a WCU embodiment. PO’s argument is thus based on
`
`PO’s assertion that the DeLorme does not disclose the use of a Web-based em-
`
`bodiment and a non-Web WCU device in the same system, which is wrong for the
`
`reasons discussed above.
`
`H. DeLorme Discloses “Relates to Orders” (Claim 11)
`PO argues that “relates to orders” means “relates to ordering a restaurant
`
`meal” (POR at 12) and, solely based on this construction, argues that the Petition
`
`fails to establish the presence of this limitation in DeLorme (POR at 50-51). PO’s
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`argument fails because its construction is wrong. “Relates to orders” is broader
`
`than restaurant meal orders. Paper No. 25 at 5. The ’325 patent contemplates
`
`“ordering” in a wide variety of contexts: “Web server application software exists
`
`that enables a user to shop for and order merchandise. Such systems are sometimes
`
`referred to as electronic merchandising systems or virtual storefronts ... As can be
`
`appreciated, ordering merchandise can also be done from menus.” Ex. 1003 at
`
`12:57-13:9; see also 13:27-49; 14:30-35. The statement in the Petition that the
`
`“second menu ... applicable to a predetermined type of ordering” in claim 1
`
`“relates to the ordering of a meal at a restaurant” does not mean that claim 1 is
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`WEST\268081547.1
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`19
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`

`
`limited to this type of ordering. Moreover, the statement in the Board’s Institution
`
`Decision relied on by PO was not a construction. Paper No. 25 at 5.
`
`Dependent Claim 15
`
`I.
`PO argues that claim 15, which recites “The ... system of claim 11, 12, or
`
`13,” is not obvious if any of claims 11, 12, or 13 are not obvious. POR at 15. PO
`
`has it backwards: unless the limitations recited in claim 15 are non-obvious (they
`
`are not), then claim 15 is obvious if any one of claims 11, 12 or 13 are obvious.
`
`Brown v. 3M, 265 F.3d 1349, 1351 (Fed. Cir. 2001)(“When a claim covers several
`
`structures or compositions, either generically or as alternatives, the claim is
`
`deemed anticipated if any of the structures or compositions within the scope of the
`
`claim is known in the prior art.”). The same r

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