CBM2015-00091
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`STARBUCKS CORPORATION,
`Petitioner,
`
`v.
`
`AMERANTH, INC.
`Patent Owner.
`____________
`
`Case No. CBM2015-00091
`U.S. Patent No. 6,384,850 B1
`____________
`
`Submitted Electronically via the Patent Review Processing System
`
`
`
`PATENT OWNER'S REQUEST FOR REHEARING
`OF INSTITUTION DECISION
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`STARBUCKS CORPORATION,
`Petitioner,
`
`v.
`
`AMERANTH, INC.
`Patent Owner.
`____________
`
`Case No. CBM2015-00091
`U.S. Patent No. 6,384,850 B1
`____________
`
`Submitted Electronically via the Patent Review Processing System
`
`
`
`PATENT OWNER'S REQUEST FOR REHEARING
`OF INSTITUTION DECISION
`
`
`
`
`
`
`
`CBM2015-00091
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`I. INTRODUCTION.
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`Patent Owner Ameranth, Inc., pursuant to 37 CFR §42.71, respectfully
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`requests rehearing of the Board's Institution Decision in CBM2015-00091 (Paper
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`9), in which the Board instituted a covered business method (CBM) review as to
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`claims 12-16 of U.S. Patent No. 6,384,850 (the '850 Patent), on the grounds of 35
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`U.S.C. §103 over the combination of the Brandt1 and NetHopper2 references; and
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`over the combination of the Brandt, Demers3, and Alonso4 references.
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`II. STATEMENT OF PRECISE RELIEF REQUESTED.
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`Patent Owner respectfully requests that the Board rehear and reconsider its
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`Institution Decision in CBM 2015-00091 and modify the Institution Decision to
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`hold that trial shall not be instituted herein on claims 12-16 of the '850 Patent.
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`1 Japanese Unexamined App. No. H10-247183 (published Sept. 14, 1998) (Ex.
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`1004) (certified translation) (Ex. 1005, hereinafter,“Brandt”).
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`2 NetHopper Version 3.2 User's Manual, 1–24 (1997) (Ex. 1006, "NetHopper").
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`3 Alan Demers, et al., The Bayou Architecture: Support for Data Sharing Among
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`Mobile Users, Mobile Computing Systems & Applications, 1995. Proceedings,
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`Workshop on. IEEE, 1–7, 1995. (Ex. 1009, hereinafter “Demers”).
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`4 Gustavo Alonso et al., Exotica/FMDC: A Workflow Management System for
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`Mobile and Disconnected Clients, Databases & Mobile Computing, 28–45, 1996
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`(Ex. 1012, hereinafter, “Alonso”).
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`1
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`CBM2015-00091
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`III. THE RELIEF REQUESTED SHOULD BE GRANTED.
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`The Board's Institution Decision on CBM2015-00091 should be modified
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`because the Board relied on the incomplete Petitioner exhibit (Exhibit 1035,
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`comprising portions of the “Dittmer” reference), the incompleteness of which
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`contributed to the Board misapprehending and overlooking key, and contradictory,
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`evidence that is found in the complete Dittmer book.
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`As set forth and discussed below, the proper conclusion is that no trial should
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`be instituted as to claims 12-16 of the '850 Patent, because in fact Dittmer clearly
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`confirms that "hospitality applications" do not include “car rentals” or other
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`travel/transportation functions.
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`The complete Dittmer reference,5 recently obtained by Patent Owner6 on
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`September 19, 20157 subsequent to the Institution Decision,8 clearly contradicts
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`5 Clearly, the complete book (including the actual “Glossary” of terms), was long
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`in the possession of Petitioner and available to its expert, because otherwise
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`Petitioner could not have selectively produced only the subset of pages that it did.
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`Yet, Petitioner excluded this Glossary from its incomplete production, along with
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`the TOC, which showed the Glossary's existence.
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`6 See Exhibit 2040, yet this is not new evidence, rather merely the complete
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`version of Petitioner Exhibit 1035.
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`7 Patent Owner was only able to first see the complete Dittmer book when it
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`located and ordered a copy (which is long out of print) and received it on
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`September 19, 2015, via Express Mail.
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`2
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`CBM2015-00091
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`Petitioner’s purported Dittmer based definitions of the critical terms as adopted by
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`the Board, and confirms that the portions of Dittmer omitted by Petitioner are
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`material to the outcome of the Institution Decision. If Petitioner had simply
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`produced the full Dittmer book as an exhibit, including the Glossary of terms,
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`which actually define all the disputed terms, it would have been clear to the Board
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`that no institution of trial is warranted herein, because the Dittmer authors
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`precisely defined all the disputed terms to be consistent with Patent Owner's
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`definition of "hospitality" and in direct contradiction to Petitioner's asserted
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`definition. Petitioner relied only on portions of the Dittmer reference which
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`Petitioner alleged supported its view, while excluding the directly contradictory
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`portions of Dittmer, i.e., the actual Dittmer-defined definitions.
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`8 Relying on the prohibitions against "incorporation by reference" and that all
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`relied upon evidence must be cited to in the Petition itself, Patent Owner
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`understandably anticipated that the Board would rely on the Petitioner cited pages,
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`pp. 11-14, 404 in Dittmer (Pet. at 48-49), which are for the broader and unclaimed
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`term "travel and tourism" and not “hospitality”. Once apprised, in the Institution
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`Decision, of the Board’s expansive consideration of the excerpts of Dittmer as it
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`related to the broader "travel and tourism" industry, Ameranth was then
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`compelled to seek to obtain the complete book. Further, Petitioner included 52
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`references in its Petition, including many other "excerpts”, and Patent Owner could
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`not have known which of these the Board would expansively rely on until it saw
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`the Institution Decision.
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`3
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`CBM2015-00091
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`
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`A. Relevant applicable statutes and regulations.
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`A request for rehearing must identify specifically all matters the party believes
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`were misapprehended or overlooked, and the place where each matter was
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`addressed previously in a motion, an opposition, or a reply. 37 C.F.R. §42.71(d).
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`
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`B. Trial should not be instituted on claims 12-16 of the '850 Patent on
`the instituted grounds – all relying on "Brandt" to teach the
`requisite "hospitality application" limitations of all claims, because
`the Board inadvertently overlooked and misapprehended critical
`evidence from the partial/excerpted "Dittmer" reference.
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`The Board's findings as to the construction of "hospitality" were founded on
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`an inadvertent misapprehension of the evidence, exacerbated by Petitioner's
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`incomplete, selective production of the Dittmer reference. Because this erroneous
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`finding is dispositive to both instituted grounds, no trial should be instituted.
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`The Board held, "[o]n this record, we are persuaded that the ordinary and
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`customary meaning of hospitality is broad enough to encompass car rental
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`activities," and "[o]ur construction of hospitality includes businesses such as car
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`rental agencies that provides services to travelers." (Inst. Dec. at 12; emphasis
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`added.). This erroneous construction of "hospitality" is contrary to the plain
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`meaning of the claims, disclosure and prosecution history, and depends on the
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`Board relying on a materially incomplete exhibit, i.e., less than 25% of the
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`complete Dittmer reference. The actual Dittmer definition (in the non-produced
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`pages, in the Glossary) is in direct conflict with the Board’s adopted definition.
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`4
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`CBM2015-00091
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`1. The Board relied on Petitioner's parsed production of selected
`portions of the Dittmer reference, believing it to be
`representative.
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`The "record" that the Board relied on to reach its conclusions was based on a
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`parsed and incomplete exhibit, with material portions excluded from Petitioner's
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`selective and incomplete production. The Board reached the erroneous conclusion
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`that the excerpted portions produced by Petitioner were the actual definitions of the
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`critical hospitality terms as adopted by the authors of Dittmer:
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`Petitioner asserts that “[t]he car rental applications described in
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`Brandt are hospitality applications.” Id. at 49. In support of its
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`position, it cites a hospitality textbook, Paul R. Dittmer.
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`Dimensions of the Hospitality Industry, Ex. 1035. This 1997
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`textbook includes a section titled “A Definition of Hospitality.”
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`Inst. Dec. at 11. The Board was led by Petitioner to the erroneous belief that its
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`cited section of the book established Dittmer's actual definitions of the key terms.
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`However, this was a misapprehension of the actual teachings of Dittmer,
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`precipitated by the Board not having the complete Dittmer book in front of it.
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`
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`2. The Board's construction erroneously broadens the patent
`disclosure, the prosecution history, and the plain language of
`the claims far beyond their actual meanings.
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`First, the BRI construction standard used by the PTAB in CBM proceedings is
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`to reflect the "ordinary and accustomed" meaning of a claim term as understood by
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`a person of skill in the art at the time of the invention, and that such meaning shall
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`5
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`CBM2015-00091
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`prevail unless the patentee indicated an intention to vary that meaning. See, e.g.,
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`Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004).
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`Further, the specification and drawings must be consulted, because the ascribed
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`meaning must be fully consistent therewith. "Claims must be read in view of the
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`specification, of which they are a part." Markman v. Westview Instruments, Inc., 52
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`F.3d 967, 979 (Fed. Cir. 1995), aff'd, 517 U.S. 370 (1996).
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`Second, as the Board itself noted, the "traditional" view of "hospitality"
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`"refers to the act of providing food, beverages or lodging to travelers." Inst. Dec. at
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`11. Patent Owner submits that the author’s "traditional" view is consistent with the
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`"ordinary and accustomed" definition of a term as would be understood by a
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`POSITA, and a correct reading of the complete Dittmer reference, including its
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`Glossary of terms, confirms that fact.
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`Further, the Board overlooked portions of Dittmer, directly preceding and
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`following the selected Dittmer passage quoted by the Board as discussed above,
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`which confirm that the "traditional" view is, in fact, the Dittmer authors' actual
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`view of the definition of "hospitality." This overlooked evidence includes the
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`following: "The word hospitality has ancient roots, dating from the earliest days of
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`Roman civilization. It is derived from the Latin word hospitare, meaning to
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`"receive a guest." (Dittmer, p. 5.) Additionally, as Dittmer explains, "If the word
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`hospitality refers to the act of providing food, beverages or lodging to travelers
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`6
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`CBM2015-00091
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`then the hospitality industry consists of businesses that do this." (Dittmer, pp. 5-
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`6). Dittmer further states: "The hospitality industry provides food, beverages,
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`lodging or some combination of the three that other businesses would provide only
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`on the most incidental basis." (Dittmer, p. 6; emphasis added.)
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`Thus, the "traditional" and "ordinary and accustomed" definition of hospitality
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`was clearly adopted by the Dittmer authors as their understanding of the meaning
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`of “hospitality.” It would be clear error to disregard the evidence from Dittmer
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`identified above which contradicts Petitioner’s argument and the Board’s
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`conclusion. Evidence in an extrinsic reference that supports a patentee's position
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`cannot be overlooked. Bancorp Servs., LLC v. Hartford Life Ins. Co., 359 F.3d
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`1367, 1373 (Fed. Cir. 2004). ("[W]e conclude that the district court's analysis of the
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`extrinsic evidence was flawed. In particular, the court disregarded several
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`important portions of the extrinsic evidence that supported Bancorp's assertion that
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`the term [] would be understood by a person of skill in the pertinent art.")
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`The Board then misapprehended two statements made by Dittmer as allegedly
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`"redefining" the "traditional” and the "ordinary/customary" definition of
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`hospitality, and the hospitality market clearly defined by the authors. The Board
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`mistakenly concluded that "[t]he authors then discuss a broader view of
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`hospitality." (Inst. Dec. at 11-12.) This mistaken conclusion was based on the
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`Board’s misapprehension of the statement "services primarily to travelers in a
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`7
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`CBM2015-00091
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`broad sense of the term." (Inst. Dec. at 11-12.) The "term" that Dittmer refers to,
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`in regard to a "broad sense", is not "hospitality" (which Dittmer had already
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`clearly defined), rather it is "traveler" (the “broader definition" of "traveler" is
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`referred to in Dittmer on page 402).9 Thus, the comment on page 6 of Dittmer
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`did not expand or broaden the definition of "hospitality" that is set forth on page 5,
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`nor would it have made any sense to have done so. The Glossary confirms this.
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`As further evidence confirming that the hospitality market definition was
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`defined by the authors to be "food/beverages and lodging" for guests and that
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`hospitality is merely a subset of the larger "Travel and Tourism" (a different and
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`unclaimed term) superset, Dittmer stated:
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`In this chapter and the two that follow, we will turn our attention
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`from the specifics of food, beverage and lodging operations to the
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`larger industry, of which hospitality operations are a part; travel
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`and tourism.
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`Dittmer at p. 396 (emphasis added).
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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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`9 "The US Travel Data Center uses a broader definition, a traveler is, “Any
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`resident of the United States regardless of nationality who travels to a place 100
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`miles or more away from home within the United States…." (Dittmer, p. 402;
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`emphasis added.) (See also the actual definition in the Glossary.)
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`8
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`CBM2015-00091
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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
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`industry. Ex. 1035 at 11-14 and 403-404." (Pet. at 48-49; emphasis added.)
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`The single-line "car rental" reference on page 404 of Dittmer, on which
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`Petitioner erroneously relied to support its argument that car rentals are a part of
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`the hospitality market – and which was also mistakenly relied on by the Board
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`(Inst. Dec. at 12) – was actually a listing of businesses of the broader "travel
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`industry" (as confirmed by Dittmer itself as discussed above, "car rentals" are part
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`of the superset of "travel and tourism," not part of the "hospitality" subset).
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`The Board's construction of "hospitality" is erroneously overbroad, and
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`eviscerates the meaning as defined by the intrinsic evidence. Expanding and
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`redefining "hospitality" to encompass all of "travel/tourism" is inconsistent with
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`the entirety of the intrinsic evidence, including the prosecution history. 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 POSITA 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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`9
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`CBM2015-00091
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`The inventors did not claim or describe any embodiments that include "car
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`rentals" and/or other "travel/tourism" functions outside the hospitality industry, nor
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`would any POSITA have thought them to be hospitality functionality. This is not
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`an instance of, as the Board mistakenly stated, whether there was "a clear intention
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`on behalf of the patentee to narrow the meaning of this term." (Inst. Dec. at 12;
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`emphasis added.) Rather, the error herein arises from not only broadening the
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`proper meaning of "hospitality," but improperly importing "travel/tourism" into the
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`claims and replacing the actual claimed term "hospitality" with the unclaimed and
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`broader term "travel/tourism." The Board's misplaced reliance on Petitioner's
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`selectively-excerpted portions of Dittmer, instead of the entire reference, led the
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`Board to misapprehend critical aspects of Dittmer, and to mistakenly agree to not
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`just broaden the "hospitality" term beyond its "ordinary and customary" meaning,
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`but to erroneously import an unrecited term into the claims.
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`Broadening of claim terms inconsistent with the plain language of the claims
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`and disclosure is prohibited, as recently emphasized by the Federal Circuit in
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`Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1299 (Fed. Cir. 2015), in
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`which the Federal Circuit reversed claim constructions made under the "broadest
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`reasonable interpretation" standard:
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`Even under the broadest reasonable interpretation, the Board’s
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`construction "cannot be divorced from the specification and the
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`record evidence," In re NTP, Inc., 654 F.3d 1279, 1288 (Fed. Cir.
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`10
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`CBM2015-00091
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`2011), and "must be consistent with the one that those skilled in
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`the art would reach," In re Cortright, 165 F.3d 1353, 1358 (Fed.
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`Cir. 1999). A construction that is "unreasonably broad" and which
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`does not "reasonably reflect the plain language and disclosure" will
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`not pass muster. Suitco, 603 F.3d at 1260.
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`The broadening of the "hospitality" claim term into "travel/tourism" was error
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`because it was in contravention of the specification and the plain language of the
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`claims and thus "will not pass muster" under Proxyconn. It is well established that
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`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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`3. A full reading of Dittmer, including the excluded Glossary,
`compels the conclusion that Patent Owner's construction of
`"hospitality" is correct and excludes "car rentals".
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`The complete Dittmer reference is not "new evidence." Petitioner submitted
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`only excerpted portions as an exhibit, but those excerpts were not "representative",
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`and excluded relevant and material portions of Dittmer that are inconsistent with
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`the arguments made in the Petition. In particular, material portions of Dittmer that
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`are relevant to the "hospitality applications" construction upon which the
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`Institution Decision rests, and which directly contradict that construction, were not
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`11
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`CBM2015-00091
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`provided by Petitioner, precluding the Board and Patent Owner from making
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`analyses based on the full teachings of Dittmer.
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`The Board misapprehended the selectively-produced portions of Dittmer, and
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`the Institution Decision relied on Petitioner's argument that the parsed exhibit
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`supported its contentions, even though the entire (unproduced) Dittmer reference
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`contradicts Petitioner’s contentions and supports Patent Owner's construction of
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`"hospitality" that excludes car rentals and other travel/transportation functions.
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`The Glossary,10 i.e., the Dittmer authors' "dictionary of terms," includes the
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`actual definitions below, which confirm that the Board misapprehended the
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`selectively-produced portions of Petitioner’s Dittmer exhibit:
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`Hospitality: "Hospitality is a term derived from the Latin word
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`"hospitare", meaning “to receive as a guest.” “To receive as a
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`guest” is a phrase that implies a host prepared to meet a guest's
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`basic requirements while that guest is away from home – food,
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`beverages and lodging. (Dittmer, p. 543; emphasis added)
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`Hospitality Industry: “The hospitality industry consists of
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`businesses that provide food, beverages, or lodging to travelers.
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`(Dittmer, p. 543; emphasis added)
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`Reservation: "The term reservation refers to an arrangement by
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`which lodging operators hold accommodations for guests who
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`will be arriving at some later time or foodservice operators hold
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`tables for customers who will be coming later to dine. The guests
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`10 See pages 530-560 of Exhibit 2040, the complete Dittmer reference.
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`12
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`CBM2015-00091
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`or customers may make their reservation for the same day or for
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`some date in the future. (Dittmer, p. 553; emphasis added)
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`Traveler: As defined by the U.S. Data Travel Center, a traveler is
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`any resident of the United States, regardless of nationality, who
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`travels within the United States to a place one hundred or more
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`miles away from home or who stays away from home one or more
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`nights in paid accommodations and who returns home within
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`twelve months, except for those commuting to and from work
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`attending school. The terms traveler and tourist are commonly used
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`interchangeably. (Dittmer, p. 567)
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`Travel and Tourism: The terms travel and tourism are commonly
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`linked together to create this special term used to refer to those
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`businesses providing primary service to travelers. These include
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`the traditional hospitality businesses and a number of others
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`closely linked to them in such fields as entertainment, recreation,
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`and transportation, plus travel agencies and tour operators.”
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`(Dittmer, p. 561; emphasis added)
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`Table Service: A type of service characterized by orders for food
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`and beverages taken from customers seated at tables. The
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`servers taking the orders normally deliver the food and beverages
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`to the customers at their tables. (Dittmer, p. 558; emphasis added)
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`Drive-Through: A drive-through is an operation at which a
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`customer can drive a vehicle to a window to obtain and pay for
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`food without ever leaving the vehicle.” (Dittmer, p. 537; emphasis
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`added)
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`13
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`CBM2015-00091
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`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. Hospitality reservations are defined by Dittmer as "lodging"
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`or "foodservice" reservations and do not include car reservations. Hospitality is
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`only a subset of the broader "travel and tourism" superset, and car rentals/
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`transportation are thus outside of the hospitality subset.
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`Patent Owner's proposed construction – i.e., that a POSITA would understand
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`"hospitality" to exclude travel and transportation activities and in particular car
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`rental applications (see Preliminary Response at 32-33) – is the correct
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`construction pursuant to Dittmer itself, and is entirely consistent with the
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`specification and prosecution history. The Board erred by not applying Dittmer's
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`actual "definitions", due to the fact that those definitions were parsed out of the
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`exhibit submitted by Petitioner. Application of the correct construction of
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`"hospitality" compels the conclusion that Petitioner has failed to put forth
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`sufficient evidence to warrant the institution of trial herein.
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`IV. CONCLUSION.
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`This issue presents a unique situation requiring reconsideration by the Board.
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`A review of the complete Dittmer reference compels the correct result here, which
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`is to revise the construction to reflect the authors' "traditional" and "ordinary and
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`accustomed" meaning of “hospitality,” consistent with the intrinsic evidence,
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`14
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`CBM2015-00091
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`which (as Patent Owner asserted in the Preliminary Response) excludes "car
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`rentals" and other travel/transportation functions. This is consistent with the
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`Board’s established construction for "hospitality applications" – “e.g., reservations,
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`frequent customer ticketing, waitlists, etc." (Inst. Dec. at 12.)
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`For the reasons set forth herein, Patent Owner respectfully requests that the
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`Board rehear and reconsider its CBM2015-00091 Institution Decision in which the
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`Board instituted a covered business method patent review as to claims 12-16 of the
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`'850 Patent on the grounds set forth in the Institution Decision, and to hold that
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`trial shall not be instituted on claims 12-16 of the '850 Patent.
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`Respectfully Submitted,
`
` /John W. Osborne/
`John W. Osborne
`Lead Counsel for Patent Owner
`USPTO Reg. No. 36,231
`OSBORNE LAW LLC
`33 Habitat Lane
`Cortlandt Manor, NY 10567
`josborne@osborneipl.com
`Tel.: 914-714-5936
`Fax: 914-734-7333
`
`Michael D. Fabiano
`Back-up Counsel for Patent Owner
`USPTO Reg. No. 44,675
`FABIANO LAW FIRM, P.C.
`12526 High Bluff Drive, Suite 300
`San Diego, CA 92130
`mdfabiano@fabianolawfirm.com
`Tel.: 619-742-9631
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`15
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`Dated: September 22, 2015
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`CBM2015-00091
`
`CERTIFICATE OF SERVICE
`
`I certify that, in accordance with 37 C.F.R. §42.6, a true and correct copy of
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`
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`the foregoing PATENT OWNER'S REQUEST FOR REHEARING OF
`
`INSTITUTION DECISION was served on September 22, 2015 by causing said
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`documents to be delivered via electronic mail, per agreement of the parties, to
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`counsel for Petitioner at the following email addresses:
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`PERKINS COIE LLP
`
`Bing Ai, Ai-ptab@perkinscoie.com
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`Matthew C. Bernstein, MBernstein@perkinscoie.com
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`Patrick N. McKeever, PMcKeever@perkinscoie.com
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`Yun L. Lu, LLu@perkinscoie.com
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`Dated: September 22, 2015
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`/s/ Michael D. Fabiano
`Michael D. Fabiano
`Back-up Counsel for Patent Owner
`USPTO Reg. No. 44,675
`FABIANO LAW FIRM, P.C.
`12526 High Bluff Drive, Suite 300
`San Diego, CA 92130
`mdfabiano@fabianolawfirm.com
`Tel.: 619-742-9631
`
`
`
`16
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