UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`STARBUCKS CORP.
`Petitioner
`
`v.
`
`AMERANTH, INC.
`Patent Owner
`
`____________
`
`Case CBM2015-00091
`Patent No. 6,384,850
`____________
`
`Submitted Electronically via the Patent Review Processing System
`
`CORRECTED PATENT OWNER’S RESPONSE
`
`

`
`TABLE OF CONTENTS
`
`CBM2015-00091
`
`Page
`
`Contents
`
`I. STATEMENT OF PRECISE RELIEF REQUESTED ...................................... 1
`II. INTRODUCTION.............................................................................................. 1
`III. CLAIM CONSTRUCTION ............................................................................... 2
`1.“wireless handheld computing device” .............................................. 3
`2.“central database” ............................................................................ 3
`3.“web page” ....................................................................................... 3
`4.“web server”..................................................................................... 4
`5.“communications control module”..................................................... 4
`6.“synchronized” ................................................................................. 5
`7.“hospitality applications” ................................................................. 5
`8.“application program interface” ..................................................... 11
`9.“outside applications”..................................................................... 11
`10.“integration”................................................................................. 11
`11.“single point of entry for all hospitality applications”.................... 11
`12.“automatic” .................................................................................. 12
`13.“Wherein the communications control module is an interface
`between the hospitality applications and any other
`communications protocol”.................................................................. 13
`IV. THERE HAS BEEN NO SHOWING OF OBVIOUSNESS ........................... 15
`A. Neither §103 Challenge Provides Disclosure Or Suggestion Of
`Hospitality Application Functionality ................................................... 24
`B. There is No Teaching Or Suggestion Of “A Central Database
`Containing Hospitality Applications And Data” .................................... 25
`C. There Is No Disclosure Of Claim 12 First Wherein Clause ............... 27
`D. There Is No Disclosure Of Claim 12 Element “b”............................. 34
`
`-i-
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`

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`CBM2015-00091
`
`E. There Is No Disclosure Of Claim 12 Element “d” ............................. 42
`F. Neither Reference Discloses The Claimed “Application Program
`Interface” That “Enables Integration of Outside Applications with
`the Hospitality Applications”................................................................ 42
`G. Neither Reference Discloses A“Communications Control
`Module” Nor ‘Wherein The Communications Control Module Is An
`Interface Between The Hospitality Applications And Any Other
`Communications Protocol..................................................................... 43
`H. Dependent Claims............................................................................ 48
`I. Objective Evidence Of Non-Obviousness .......................................... 51
`1. There is a very strong nexus between the evidence of
`"secondary considerations" and the challenged claims........................... 54
`2. The Ameranth patents in this family, including the challenged
`claims, have been successfully and extensively licensed ....................... 64
`3. Ameranth's products enjoyed substantial, widespread
`commercial success .............................................................................. 66
`4. Ameranth's 21st Century Restaurant received numerous
`technology awards and industry acclaim after its introduction ............... 68
`5. Ameranth received overwhelming industry praise for the 21st
`Century Restaurant technology ............................................................. 70
`6. Starbucks and numerous other companies copied the Ameranth
`technology reflected in the challenged claims ....................................... 73
`7. Other companies in the industry tried and failed to develop the
`integrated, synchronized innovation of the Ameranth technology
`and patent claims.................................................................................. 78
`8. Objective Evidence Conclusion ..................................................... 80
`V. CONCLUSION................................................................................ 80
`
`-ii-
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`

`
`TABLE OF AUTHORITIES
`
`CBM2015-00091
`
`Page
`
`Cases
`
`Allen Archery, Inc. v. Browning Mfg. Co.,
`819 F.2d 1087 (Fed. Cir. 1987)........................................................................... 70
`
`Ameranth v. Pizza Hut et al.,
`Case No. 3-11-cv-01810 (S.D. Cal. 2013) .......................................................... 56
`
`Apple Inc. v. International Trade Commission,
`725 F.3d 1356 (Fed. Cir. 2013)........................................................................... 51
`
`Berk-Tek LLC. v. Belden Techs., Inc.,
`IPR2013-00059, FWD 34 (PTAB April 28, 2014) ............................................ 33
`
`Crocs, Inc. v. ITC, 598 F.3d 1294
`(Fed. Cir. 2010) .................................................................................................. 73
`
`Dynamic Drinkware, LLC v. National Graphics, Inc.,
`800 F.3d 1375 (Fed. Cir. 2015)........................................................................... 33
`
`Eli Lilly & Co. v. Zenith Goldline Pharmaceuticals, Inc.,
`471 F.3d 1369 (Fed. Cir. 2006).............................................................................69
`
`Gambro Lundia AB v. Baxter Healthcare Corp.,
`110 F.3d 1573 (Fed. Cir. 1997)..................................................................... 55, 70
`
`In re GPAC Inc., 57 F.3d 1573 (Fed. Cir. 1995).............................................. 55, 66
`
`Heidelberger v. Hantscho Prods.,
`21 F.3d 1068 (Fed. Cir. 1994)............................................................................. 73
`
`HIMPP v. Hear-Wear Techs., LLC,
`
`-iii-
`
`

`
`CBM2015-00091
`
`751 F.3d 1362 (Fed. Cir. 2014)........................................................................... 34
`
`Hockerson-Halberstadt, Inc. v. Converse Inc.,
`183 F.3d 1369,(Fed. Cir. 1999)........................................................................... 44
`
`In re Ratti,
`270 F.2d 810 (CCPA 1959)................................................................................. 20
`
`In re Roufett,
`149 F.3d 1350 (Fed. Cir. 1998)........................................................................... 65
`
`In re Van Geuns,
`988 F.2d 1181 (Fed. Cir. 1993)............................................................................. 9
`
`KSR Int'l Co. v. Teleflex, Inc.,
`550 U.S. 398 (2007). ..................................................................................... 33
`
`Kurtz v. Belle Hat Lining Co., Inc.,
`280 F. 277 (2nd Cir. 1922) ................................................................................... 73
`
`Microsoft Corp.v. Proxyconn, Inc.,
`789 F.3d 1292 (Fed. Cir. 2015).......................................................................... 2,9
`
`PAR Pharma., Inc. v. TWI Pharm., Inc.,
`773 F.3d 1186 (Fed. Cir. 2014) ………………...…………………………… 18
`
`Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc.,
`711 F.3d 1348 (Fed. Cir. 2013)........................................................................... 57
`
`Power-One v. Artesyn Techs, Inc.,
`599 F.3d 1343 (Fed. Cir. 2010)...................................................................... 70,78
`
`Rambus v. Rea,
`731 F.3d at 1256........................................................................................... 52, 70
`
`-iv-
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`

`
`CBM2015-00091
`
`Teva Pharm., Inc. v. Sandoz, Inc.,
`723 F.3d 1363 (Fed. Cir. 2013)........................................................................... 54
`
`Vandenberg v.Dairy Equip. Co., a Div. of DEC Int’l, Inc.,
`740 F.2d 1560 (Fed. Cir. 1984)........................................................................... 77
`
`Statutes
`
`35 U.S.C. §103.................................................................................................. 1, 80
`
`-v-
`
`

`
`CBM2015-00091
`
`PATENT OWNER’S LIST OF EXHIBITS
`
`Exhibit No.
`
`Description
`
`2001
`
`2002
`
`2003
`
`2004
`
`2005
`
`2006
`
`2007
`
`Food.com Internal Memorandum, “Ameranth Licensing
`Contract,” Sept. 13, 1999
`
`iOS Simulator User Guide, March 9, 2015
`
`Ameranth/Par Technology Corp. License
`Announcement, Jan. 28, 2013
`http://blogs.wsj.com/digits/2014/04/02/apples-jobs-
`declared-holy-war-on-google-over-android/, discussing
`Apple 2010 emails made public in Apple v. Samsung
`Litigation
`
`The House that Tech Builds,
`http://hospitalitytechnology.edgl.com/news/the-house-
`thattech-builds99460?referaltype=newsletter, Hyatt
`CTO Interview, April 8. 2015
`
`Domino’s Press Release,
`http://www.prnewswire.com/news-releases/dominos-
`pizza-first-in-industry-to-offer-mobile-
`ordering58317297.html, Sept. 27, 2007
`
`“Domino's app let's you voice-order pizza,”
`http://www.usatoday.com/story/money/business/2014/0
`6/16/dominos-voice-ordering-app-nuancefast-
`food-restaurants/10626419/, June 16, 2014
`
`-vi-
`
`

`
`2008
`
`2009
`
`2010
`
`2011
`
`2012
`
`2013
`
`2014
`
`2015
`
`2016
`
`2017
`
`2018
`2019
`
`2020
`
`CBM2015-00091
`
`“Starbucks to roll out innovations in mobile platform--
`Company says new mobile features could be ‘holy grail’
`of throughput,” http://nrn.com/quick-service/starbucks-
`roll-out-innovations-mobile-platform, March 13, 2014
`
`“Starbucks’ mobile order and pay sees hot start, aided
`by
`Integration,” www.mobilecommercedaily.com, April
`27, 2015
`“Agilysys Introduces InfoGenesis Roam Mobile
`Software,” June 21, 2011
`Ex parte McNally, Appeal No. 2012-001503 (PTAB
`Nov. 4, 2014)
`Decision in Appeal No. 2010-000055 (BPAI March 3,
`2011)
`Decision in Appeal No. 2009-011707 (BPAI Feb. 14,
`2011)
`Decision in Appeal No. 2009-008033 (BPAI Jan. 28,
`2011)
`Excerpts from Microsoft Computer Dictionary (4th ed.
`1999)
`“The Computerworld Honors Program--Case Study,”
`Award to Marriott International, Inc. (2006)
`Decision in Appeal No. 2011-004999 (PTAB Oct. 17,
`2013)
`Transcript of FS/TEC Awards Presentation (Feb. 2009)
`App. Ser. No. 11/112,990, Declaration under 1.131 (Jan.
`2009
`App. Ser. No. 11/112,990, Declaration under 1.132
`(Aug. 2009)
`
`-vii-
`
`

`
`2021
`
`2022
`
`2023
`
`2024
`
`2025
`
`2026
`
`2027
`
`2028
`
`2029
`2030
`
`2031
`
`2032
`
`2033
`
`2034
`
`2035
`
`CBM2015-00091
`
`App. Ser. No. 11/112,990, Supplemental Declaration
`under 1.132 (May 2010)
`App. Ser. No. 11/112,990, Supplemental Response,
`Amendment, Nexus Declaration, Declaration under
`1.132 (Dec. 2010)
`App. Ser. No. 11/112,990, Correction to Supplemental
`Response (Feb. 2011)
`
`Final Rejection in App. Ser. No. 09/897,292
`
`Appeal Decision, No. 2013-007728 (PTAB June 4,
`2015)
`Appeal Decision, No. 2009-010272 (BPAI April 18,
`2011)
`Appeal Decision, No. 2009-010632 (BPAI May 24,
`2010)
`Appeal Decision, No. 2013-006445 (PTAB June 1,
`2015)
`U.S. Pat. No. 6,384,850 Original Figures 1-7
`Helal Background Summary
`
`Helal U.S. Pat. Pub. No. 2005/0076327 (April 7, 2005)
`
`Helal Executed Inventor Declaration, U.S. App. Ser.
`No. 10/758,180 (April 2, 2004)
`
`Judge Everingham Claim Construction Order, CA No.
`2:07-cv-271 (April 21, 2010)
`Edwards, et al., “Designing and Implementing
`Asynchronous Collaborative Applications with Bayou”
`(1997)
`App. Ser. No. 11/112,990, Interview Summary (Oct.
`2011)
`
`-viii-
`
`

`
`2036
`
`2037
`
`2038
`
`2039
`
`2040
`
`2041
`
`2042
`
`2043
`
`2044
`
`2045
`
`2046
`
`2047
`
`CBM2015-00091
`
`Starbucks Investor Presentation (2014)
`
`The Holy Grail of Room Inventory Distribution – Cloud
`PMS, June 15, 2015
`
`Hotel brands must travel cross-channel route to
`bookings, June 15, 2015
`
`Nov. 1, 2001 Amendment, ‘325 Prosecution History,
`Serial No. 10/015,729
`
`Dittmer, “Dimensions of the Hospitality Industry”
`(complete publication)
`
`Declaration of Dr. Alfred Weaver
`
`Excerpts from Microsoft Computer Dictionary (4th ed.
`1999)
`Judge Payne Claim Construction Order, CA No. 2:10-
`cv-294 (Aug. 10, 2012)
`May 1999 announcement from National Restaurant
`Association (NRA) show in Chicago, IL.
`
`Excerpts from transcript of Deposition of John Harker,
`May 3, 2010
`
`May 14, 2012 press release re Skywire
`
`Ameranth 21st Century System Product Brochure (two-
`sided), distributed May 1999 (both original and
`annotated)
`
`-ix-
`
`

`
`2048
`
`2049
`
`2050
`
`2051
`
`2052
`
`2053
`
`2054
`
`2055
`
`2056
`
`2057
`
`2058
`
`2059
`
`CBM2015-00091
`
`Press releases and announcements of various Ameranth
`patent licenses and alliances
`
`Hospitality Technology, "POS Scoreboard", 2004 and
`2006
`
`Microsoft RAD Award, 2003.
`
`Excerpts from book, "Market Busters"
`
`"Best New Products", QSR magazine, September 1999
`
`Email messages between Microsoft and Starbucks
`personnel, 2006-2007
`
`Scott Maw remarks, Nov. 18, 2015 Starbucks investor
`conference
`
`May 2006 Ameranth presentation to Pizza Hut
`
`Transcript of Micros remarks, 2008 FSTEC meeting
`
`Micros announcement of Simphony product
`
`Transcript of Paul Armstrong remarks, 2008 FSTEC
`meeting
`
`PowerPoint slides and screen shots from Ameranth
`presentation to Starbucks, December 1, 2006
`
`-x-
`
`

`
`2060
`
`2061
`
`2062
`
`2063
`
`2064
`
`2065
`
`2066
`
`2067
`
`2068
`
`2069
`
`2070
`
`2071
`
`CBM2015-00091
`
`"Starbucks Claims 90 Percent Mobile Payments Market
`Share", PYMTS, Oct. 31, 2014.
`
`Excerpts from prosecution file of U.S. Patent No.
`6,384,850 (McNally et al.)
`
`August 2009 Declaration under 37 CFR § 1.132, from
`prosecution file of U.S. Patent No. 8,146,077 (McNally
`et al.)
`Micros HSI press releases
`
`Micros JTECH press release
`
`Micros mycentral/Simphony press release
`
`Mark Nance PowerPoint presentation, 2009 FS/TEC
`meeting
`
`NCR/Radiant press release, July 2011
`
`PAR Technology acquires PixelPoint, article, August
`2005
`
`Dominos AnyWare announcement, August 2015
`
`Agilysys/InfoGenesis Mobile brochure
`
`"Wireless finds a welcome in hospitality," Bloomberg,
`Feb. 2004
`
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`CBM2015-00091
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`Mobile Commerce Daily article re Agilysys
`InfoGenesis, May 2015
`
`Agilysys/InfoGenesis press release, June 2012
`
`Agilysys Announces Availability of InfoGenesis™
`Mobile v2.0, Sept. 2013
`
`Xpient acquires Progressive, press release, August 2004
`
`Radiant Systems acquires Aloha Technologies, press
`release, Dec. 2003
`
`Case Study, Ameranth/Improv Comedy Clubs, Spring
`2000 (annotated)
`
`Computerworld Award summary, 2001 (annotated)
`
`Photograph from 1999 National Restaurant Association
`meeting in Chicago, IL, including (among others) Keith
`McNally and Graham Granger
`Dunkin’ Donuts Selects CARDFREE as its Mobile
`Platform, Business Wire, Dec. 2015.
`
`Transcript of remarks from 2009 FSTEC meeting,
`Technology Executives Panel
`
`2072
`
`2073
`
`2074
`
`2075
`
`2076
`
`2077
`
`2078
`
`2079
`
`2080
`
`2081
`
`-xii-
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`

`
`CBM2015-00091
`
`I.
`
`STATEMENT OF PRECISE RELIEF REQUESTED
`
`In accordance with 37 C.F.R. §42.207(a), Patent Owner Ameranth, Inc.,
`
`(“PO”) submits this Response to the CBM review Petition (“Pet.”) against
`
`U.S. Patent No. 6,384,850 ("the '850 patent"). For the reasons below, the
`
`Petition should be denied.1
`
`II.
`
`INTRODUCTION
`
`Petitioner’s two 35 U.S.C. §103 challenges are both based on Brandt,
`
`which teaches away from the core inventive features of these claims and Brandt is
`
`not even a “hospitality” application. Further still, for Petitioner to have even
`
`alleged that the ‘850 claims would have been “obvious” to a POSA at the time of
`
`the invention when Petitioner’s own expert admitted this same POSA would have
`
`been “bewildered” by the claimed synchronization of both “applications and data”
`
`at the core of these claims was disingenuous. Helal Decl. ¶91 (Exh. 1003)
`
`1Petitioner’s standing argument merely references CBM2014-00015, and is thus
`
`insufficient. PO submits that Petitioner was required to provide, in the Petition, the
`
`basis for standing. Further, if the Federal Circuit rules that the `850 patent in CBM
`
`2014-00015 is not a CBM patent and that institution was improper, having relied
`
`on that institution for this CBM dooms the current petition as well. Patent Owner
`
`incorporates herein its Preliminary Response arguments regarding standing and
`
`preserves its right to appeal the Board’s determination thereof.
`
`-1-
`
`

`
`CBM2015-00091
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`(“Synchronizing applications between a database, a handheld device, a web server,
`
`and a web page is bewildering.”) (emphasis added). And Petitioner’s allegation
`
`that the recited “central database” and storing “applications” was “not typical” (Dr.
`
`Helal testified that “it is not typical to store applications themselves in a
`
`database.” Exh. 1003 ¶94 (emphasis added)) further demonstrates the lack of
`
`credibility of the Petition assertions. These admissions alone confirm that there
`
`would have been no motivation for a POSA to combine the asserted references to
`
`seek to replicate functionality which was “bewildering” (i.e., confusing and/or
`
`‘puzzling)5 and “atypical” and thus the opposite of “obvious.” Further, in addition
`
`to the technical and legal infirmities of Brandt vis-à-vis the actually claimed
`
`subject matter, a large quantity of objective evidence confirms nonobviousness.
`
`III. CLAIM CONSTRUCTION
`
`A BRI construction cannot read elements out of the claims and cannot be
`
`inconsistent with the intrinsic evidence. Microsoft Corp.v. Proxyconn, Inc., 789
`
`F.3d 1292, 1298 (Fed. Cir. 2015). Patent Owner presents the following proposals,
`
`all of which are supported by the intrinsic evidence. The Declaration of Dr. Alfred
`
`Weaver (Exh. 2041) in support of Ameranth’s positions on nonobviousness is
`
`critical in the claim construction analysis because it provides the perspective of a
`
`5 See http://www.collinsdictionary.com/dictionary/english/bewildering (“causing
`
`utter confusion; puzzling”).
`
`-2-
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`

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`CBM2015-00091
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`POSA in viewing the claims in light of his own knowledge and the specification
`
`disclosure. Per Dr. Weaver, a POSA would have had a Bachelor’s degree in either
`
`electrical engineering or computer science and at least three years of experience in
`
`the hospitality market in the fields of developing software for wireless networks
`
`and devices, developing Internet-based systems or applications, and knowledge or
`
`an equivalent experience in software development in the hospitality market of at
`
`least three years. (Weaver Decl., Exh. 2041 ¶21).
`
`1.
`
`“wireless handheld computing device”
`
`Patent Owner proposes “a wireless computing device that is sized to be held
`
`in one’s hand.” See Everingham Order (Exh. 2033 at 24)); Exh. 2041 ¶27.
`
`2.
`
`“central database”
`
`Patent Owner proposes “a database file structure connected to the system in
`
`association with a central server, comprised of records, each containing fields,
`
`together with a set of operations for searching, sorting, recombining and other
`
`functions.” Microsoft Comp. Dict. (4th ed.1999) (Exh. 2015, p. 123); Exh. 1001 at
`
`2:24, 11-34-35 (“backoffice server (central database)”); id. at 2:8-10, 11:13-15
`
`(“synchronization between a central database and multiple handheld devices”).
`
`(Exh. 2041 ¶28).
`
`3.
`
`“web page”
`
`The PTAB construed consistent with its prior rulings to mean “a document,
`
`-3-
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`

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`CBM2015-00091
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`with associated files for graphics, scripts, and other resources, accessible over the
`
`internet and viewable in a web browser.” Inst. Dec. 11; see also CBM2014-00015
`
`(Exh. 1017 thereto at 8)); Exh. 2041 ¶29.
`
`4.
`
`“web server”
`
`The Microsoft Computer Dictionary states: “Web Server:” “See HTTP
`
`Server.” (Exh. 2042 (Page 479)). The Dictionary then states in regard to “HTTP
`
`Server:” “Server software that uses HTTP to serve up HTML documents and any
`
`associated files and scripts when requested by a client such as a web browser.”
`
`(Exh. 2042 (Page 224)). Patent Owner proposes that this definition be adopted.
`
`Web Server is a recited element, its critical functionality in the claims has not been
`
`appreciated by the Petitioner or the Board, and the cited references suffer critical
`
`infirmities in meeting this limitation as properly construed and relative to the CCM
`
`and the third wherein clause of claim 12, as discussed below. . (Exh. 2041 ¶30).
`
`5.
`
`“communications control module”
`
`This is a software layer, as Judge Payne concluded in prior district court
`
`litigation stating that “the specification itself provides the best construction for the
`
`term at issue.” (Exh. 2043 at 13). Based on the District Court constructions and
`
`intrinsic evidence, Patent Owner proposes the following construction for the CCM:
`
`a layer that sits on top of any communication protocol and acts as an
`interface between hospitality applications and the communication
`protocol.
`
`-4-
`
`

`
`CBM2015-00091
`
`See Exh. 1001 4:9-13. Further, it is clear that the software-based CCM provides
`
`the claimed “automatic” communications “routing” functionality as shown by the
`
`specification, e.g., “[a]communication control program monitors and routes all
`
`communications to the appropriate devices” which “must be running for proper
`
`communications to exist between all devices on the network.” (Exh. 1001 9: 21-
`
`22, 38-39 (emphasis added)). As a functionally independent layer, it is also the
`
`CCM that deals concurrently with both HTTP and non-HTTP communications
`
`messaging protocols of the system as claimed, and which also supports the
`
`integration of the separately recited API (which then also deals with software
`
`application-to-application direct integration and with third party systems/devices
`
`such as point-of-sale (POS) systems, as discussed further below). (Exh. 2041 ¶31).
`
`6.
`
`“synchronized”
`
`The Board previously construed this term to mean “made, or configured to
`
`make, consistent.” CBM2015-00080, Inst. Dec. 9. (Exh. 2041 ¶32).
`
`7.
`
`“hospitality applications”
`
`The Board correctly construed this term to mean “applications used to
`
`perform services or tasks in the hospitality industry.” However, this was
`
`incomplete because it failed to establish the actual boundaries of the “hospitality
`
`industry.” The specification states “hospitality applications, e.g., reservations,
`
`frequent customer ticketing, wait lists, etc.” Exh. 1001 4:6–7; Inst. Dec. 12.
`
`-5-
`
`

`
`CBM2015-00091
`
`Further, in distinguishing prior art in the `325 application, Patent Owner stated:
`
`As known in the art, a hospitality software application is, for
`example, a piece of software used to provide operational solutions in
`hospitality industries such as restaurants and hotels, concerning,
`for example, food ordering, menus, wait-lists, and reservations
`Exh. 2039 at 7 (emphasis added); Exh. 2041 ¶33. Nonetheless, the Board relied on
`
`Petitioner’s misleadingly parsed excerpts from the Dittmer book to conclude that
`
`“hospitality” referred to the broader “travel and transportation” industry (of which
`
`“hospitality” is only a subset). The Board stated: “[o]ur construction of hospitality
`
`includes businesses, such as car rental agencies, that provide services to travelers.”
`
`Inst. Dec. 12 (“On this record, we are persuaded that the ordinary and customary
`
`meaning of hospitality is broad enough to encompass car rental activities.” Inst.
`
`Dec. 12 (emphasis added)). The Board mistakenly viewed Patent Owner’s proposed
`
`construction as a “narrowing” of Petitioner’s proposal for the broader and
`
`unclaimed “travel and transportation” industry and in so doing relied on a reference
`
`outside the correct construction. Further, the correct definition of the
`
`skills/knowledge of a POSA includes actual experience in the hospitality market,
`
`and such an experienced POSA would have fully understood the difference between
`
`the actual “hospitality” market and the broader “travel and tourism” market
`
`(Weaver Dec. ¶¶34-36 (Exh. 2041)). Ameranth’s patents indisputably excluded any
`
`mention of the terms “travel” and “tourism.” Thus a POSA would have clearly
`
`-6-
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`

`
`CBM2015-00091
`
`understood the scope of the claims to exclude “car rentals,” a subset of the broader
`
`“travel and tourism” market and not within the “hospitality” subset. Still further, as
`
`confirmed by John Harker (an independent expert), “hundreds” of hospitality
`
`customers visited and “tens of thousands” walked by Ameranth’s booth at the
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`launch of Ameranth’s 21CR product in May 1999. (Harker Testimony at 175, 14-15
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`(Exh. 2045)). Thus a POSA at the time of the invention would have known that
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`Ameranth’s inventions were directed to automating “the traditional restaurant
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`processes.” (Exh. 2044 at 1). Thus, the Board’s own decision, in viewing
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`hospitality as including the “traditional” restaurant processes (as confirmed by
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`Dittmer)9 was correct in part. However, the Board viewed the definition too broadly
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`due to the fact that it did not have access to the complete Dittmer reference at the
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`time. The full Dittmer reference (Exh. 2040), and in particular its Glossary,
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`compels a “hospitality” construction which excludes both “car rentals” and the
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`broader and unclaimed “travel/tourism” industry. (Exh. 2041 ¶34).
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`Critically, the Board now has before it the complete evidentiary record
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`which refutes Petitioner’s argument regarding “hospitality” based on the full
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`Dittmer Book which clearly demonstrates that "hospitality applications" do not
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`9 “Here, the authors of the text discuss a ‘traditional view’ of hospitality that
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`‘refers to the act of providing food, beverages, or lodging to travelers.’” (Inst.
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`Dec. at 11) (emphasis added); see also Dittmer Glossary of Terms (Exh. 2040).
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`-7-
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`CBM2015-00091
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`include “car rentals” or other travel/transportation functions.
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`Confirming that the hospitality market was defined by Dittmer as "food/
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`beverages and lodging" for guests and that hospitality is merely a subset of the
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`larger superset "Travel and Tourism" (a different, unclaimed term), Dittmer stated:
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`In this chapter and the two that follow, we will turn [] from the spe-
`cifics of food, beverage and lodging operations to the larger industry,
`of which hospitality operations are a part; travel and tourism.
`Exh. 2040, Dittmer at p. 396 (emphasis added); Exh. 2041 ¶35.
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`Thus the "hospitality industry" is not only different from the "travel and
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`tourism" industry, it is only a "part," i.e., a subset of the larger "travel and tourism"
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`industry superset. This is directly contrary to Petitioner’s argument that "[t]he car
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`rental applications described in Brandt are hospitality applications. Car rental
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`companies fall within the "Travel and Tourism" sector of the hospitality indus-
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`try. Ex. 1035 at 11-14 and 403-404." (Pet. 48-49 (emphasis added)). Petitioner’s
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`characterization was backwards–in fact Dittmer confirms that “hospitality” is a
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`sector of the broader “Travel and Tourism” industry. (Exh. 2041 ¶36).
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`The single-line "car rental" reference on page 404 of Dittmer, on which
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`Petitioner relied to support its incorrect argument that car rentals are a part of the
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`hospitality industry–and which was also mistakenly relied on by the Board (Inst.
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`Dec. 12)–was actually a listing of businesses of the broader "travel industry.” (As
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`confirmed by Dittmer itself, as discussed above, "car rentals" are part of the
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`-8-
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`CBM2015-00091
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`superset of "travel and tourism," not part of the "hospitality" subset.).
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`The Board's construction of "hospitality" was thus erroneously overbroad,
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`and eviscerates the meaning as defined by the intrinsic evidence. The word
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`"hospitality" is key to the inventions and claims, but the words "travel" or
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`"traveler" or "tourist" appear nowhere in the entirety of the specifications, claims,
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`or prosecution history. The inventors chose the term "hospitality" and not
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`"travel/tourism" (terms that are materially different as known to a POSA, as
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`detailed above), because they invented "hospitality applications" innovations (not
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`transportation innovations), and Ameranth has never asserted otherwise.
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`The broadening of the "hospitality" claim term into "travel/tourism" was
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`error because it was in contravention of the specification and the plain language of
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`the claims and thus "will not pass muster" under Proxyconn. It is well established
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`that limitations are not to be read from the specification into the claims. In re Van
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`Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Far worse is to read unclaimed
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`limitations from an extrinsic reference into the claims, which is what importing
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`“travel and tourism” into these claims would do.
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`The Dittmer Glossary (pp. 530-560 of Exhibit 2040, the complete Dittmer
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`reference), i.e., the Dittmer authors' "dictionary of terms," includes the actual
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`definitions below, which confirm that the Board misapprehended the selectively-
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`produced portions of Petitioner’s Dittmer exhibit:
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`-9-
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`CBM2015-00091
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`Hospitality[:] "Hospitality is a term derived from the Latin word
`"hospitare", meaning “to receive as a guest.” “To receive as a guest”
`is a phrase that implies a host prepared to meet a guest's basic
`requirements while that guest is away from home – food, beverages
`and lodging. (Dittmer, p. 543; Exh. 2040)
`Hospitality Industry[:] “The hospitality industry consists of
`businesses that provide food, beverages, or lodging to travelers. (Id.,
`p. 543)
`Travel and Tourism[:] The terms travel and tourism are commonly
`linked together to create this special term used to refer to those
`businesses providing primary service to travelers. These include the
`traditional hospitality businesses and a number of others closely
`linked to them in such fields as entertainment, recreation, and
`transportation, plus travel agencies and tour operators.” (Id., p. 561;
`emphasis added)
`As confirmed by these Dittmer definitions, a "car rental" is not a "hospitality
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`application," nor a hospitality "reservation," as those terms are understood in the
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`hospitality market. Rather than supporting the argument that Brandt teaches
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`"hospitality applications," Dittmer in fact disproves that argument, and Dittmer
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`itself shows that it is erroneous to read Brandt, a car-rental reference, to meet the
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`"hospitality applications" limitation or apply Brandt to the critical "central
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`database" limitation of the '850 claims. (Exh. 2041 ¶37).
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`The Board correctly recognized examples of hospitality applications as,
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`“e.g., reservations, frequent customer ticketing, waitlists, etc." (Inst. Dec. at 12).
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`CBM2015-00091
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`The Board’s established construction for "hospitality applications” is “applications
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`used to perform services or tasks in the hospitality industry” (Inst. Dec. at 13;
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`emphasis added.) Thus, indisputably, Dittmer confirms that “auto rentals” are not
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`in the “hospitality industry,”–they are in fact outside of it–in the
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`unclaimed/broader “travel and tourism industry.” (Exh. 2041 ¶38).
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`8.
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`“application program interface”
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`The recited API is not a generic API divorced from the definition of its
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`function within ‘850 claim 12. (Exh. 2041 ¶39). See also “integration” below.
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`9.
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`“outside applications”
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`In CBM2015-00080, the Board construed “outside applications” to mean
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`“third party applications, such as point of sale companies, affinity program
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`companies, and internet content providers.” Inst. Dec. 10; Exh. 2041 ¶40.
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`10.
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`“integration”
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`In another case on a related patent, the Board construed “integration” to
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`mean “combining of different activities, programs, or hardware components into a
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`functional unit.” CBM2015-00080, Inst. Dec. 11. Patent Owner proposes adoption
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`of this construction. (Exh. 2041 ¶41). This term and construction also must be
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`considered in relation to the ”CCM” and “outside applications” terms as well.
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`“single point of entry for all hospitality applications”
`11.
`The proper construction for this limitation leverages Judge Payne’s focused
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`-11-
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`construction of “single point of entry” itself, but the complete element needs to be
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`considered as a whole to be consistent with the entirety of claim 13 (as well as the
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`specification description directly related to this element). Judge Payne construed
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`“a single point of entry” as “a center of communication.” (Exh. 2043 at 18). Patent
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`Owner submits that this is the proper BRI construction but that the full term in
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`which it appears, as the core aspect of claim 13, should be construed as “a center of
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`communication for all hospitality applications.” (Exh. 2041 ¶42).
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`12.
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`“automatic”
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`As detailed in Dr. Weaver’s Declaration, automatic functionality is a key
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`inventive concept of the patents and, as explained above relative to the CCM and
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`the specification at col. 9, it is the CCM which must be running that provides the
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`recited “automatic,” i.e., routing functionality. Further, the specification clearly
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`states that “[n]o user action is needed during operation of the software once the
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`application is launched.” (Exh. 1001 9: 27-29 (emphasis added)). “Automatic” is
`