CBM2015-00099
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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. CBM2015-00099
`U.S. Patent No. 6,781,325
`____________
`
`Submitted Electronically via the Patent Review Processing System
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`
`
`PATENT OWNER'S REQUEST FOR REHEARING
`OF INSTITUTION DECISION
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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. CBM2015-00099
`U.S. Patent No. 6,781,325
`____________
`
`Submitted Electronically via the Patent Review Processing System
`
`
`
`PATENT OWNER'S REQUEST FOR REHEARING
`OF INSTITUTION DECISION
`
`
`
`
`
`
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`CBM2015-00099
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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 CBM2015-00099 (Paper
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`9), in which the Board instituted a (CBM) review as to claims 11-13 and 15 of U.S.
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`Patent No. 6,781,325 (the '325 Patent), on grounds of 35 U.S.C. §103.
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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 and modify the Decision to hold that trial shall not be
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`instituted on claims 11-13 and 15 of the '325 Patent.
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`III. THE RELIEF REQUESTED SHOULD BE GRANTED.
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`The Board's Institution Decision in CBM2015-00099 should be modified
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`because the Board relied on an 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 evidence
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`(contradictory to Petitioner's assertions) found in the complete Dittmer book.
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`As set forth and discussed below, Dittmer clearly confirms that "hospitality
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`applications" do not include “car rentals” or other travel/transportation functions,
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`and further confirms that the “ordering” in the `325 patent is “food ordering.”
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`Because all of Petitioner’s and the Board’s §103 grounds rely on the Brandt "car
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`rental" reference as purportedly disclosing “hospitality applications” in relation to
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`1
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`CBM2015-00099
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`the “central database” limitation,1 and no references teach “food ordering”
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`(pursuant to the correct construction for the “orders” limitation of claim 11, as
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`discussed below), all §103 grounds fail.
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`The complete Dittmer reference,2 recently obtained by Patent Owner3 on
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`September 19, 20154 subsequent to the Institution Decision,5 clearly contradicts
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`1 All §103 grounds (Pet. at 48-49; Inst. Dec. at 32) rely on Brandt’s “car rental"
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`reference for the “hospitality applications” limitation as regards the “central
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`database” limitation (which is pivotal to the claim as a whole–synchronization
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`clearly involves the “central database”). All grounds thus fail because, as
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`explained herein, the Brandt’s “car rental” is not a “hospitality application.”
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`2 Clearly, the complete book (including the actual “Glossary” of terms), was long
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`in the possession of Petitioner, yet Petitioner excluded this Glossary from its
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`incomplete production, along with excluding the Table of Contents (which showed
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`the Glossary’s existence).
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`3 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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`4 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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`5 Relying on the prohibitions against "incorporation by reference" and that all
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`relied-on 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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`2
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`CBM2015-00099
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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, which
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`actually defines all the disputed terms, it would have been clear to the Board that
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`institution of trial was not warranted, because Dittmer precisely defined each
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`disputed term to be consistent with Patent Owner's definitions of “hospitality” and
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`"orders" and in direct contradiction to Petitioner's asserted definitions.
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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
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`believes 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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`B. Trial should not be instituted on claims 11-13 and 15 on the
`instituted grounds–all relying on "Brandt" to teach the ”hospitality
`application" – “central database” limitation of all claims, because the
`Board inadvertently overlooked and misapprehended critical
`evidence from the parsed "Dittmer" reference.
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`The Board's constructions of "hospitality" and "orders"6 were founded on an
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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 compelled
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`to seek to obtain the complete book.
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`6 Black letter law requires claims to be construed consistently within a patent and
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`as a whole. Thus the "orders" term in claim 11 must be construed consistent with
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`3
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`CBM2015-00099
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`inadvertent misapprehension of the evidence, exacerbated by Petitioner's selective
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`production of the Dittmer reference. Because these erroneous findings are
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`dispositive to all instituted grounds, trial should not be instituted.
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`The Board held that "[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 13; emphasis
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`added.). This construction of "hospitality" is contrary to the plain meaning of the
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`claims, disclosure and prosecution history, and relied on a materially incomplete
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`exhibit, i.e., less than 25% of the complete Dittmer reference.
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`1. The Board relied on Petitioner's parsed production 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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`the proper construction of "hospitality." Both terms properly considered together
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`with the actual Dittmer Glossary definitions, discussed below, compel the
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`construction of "ordering" and "orders" in the `325 patent to be "food ordering"
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`and not "car rental" or generic "goods and services" ordering, as the Board
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`incorrectly concluded on page 32 of its Institution Decision.
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`4
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`CBM2015-00099
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`Petitioner asserts that “[t]he car rental applications described in
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`Brandt are hospitality applications.” Id. at 48. In support of its
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`position, it cites a hospitality textbook, Paul R. Dittmer. Dimensions
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`of the Hospitality Industry, Ex. 1035. This 1997 textbook includes a
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`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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`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
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`is to reflect the "ordinary and accustomed" meaning of a claim term as understood
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`by a POSITA at the time of the invention, and that such meaning shall prevail
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`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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`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 Dittmer author’s "traditional" view is consistent
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`with the "ordinary and accustomed" definition of the pertinent terms as would be
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`understood by a POSITA, and a correct reading of the complete Dittmer reference,
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`including its Glossary of terms, confirms that fact.
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`Further, the Board overlooked portions of Dittmer, directly preceding and
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`5
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`CBM2015-00099
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`following the selected Dittmer passage quoted by the Board and discussed above.
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`Those portions of Dittmer confirm that the "traditional" view is, in fact, the
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`Dittmer authors' actual view of the definition of "hospitality." This overlooked
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`evidence includes the following: "The word hospitality has ancient roots, dating
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`from the earliest days of Roman civilization. It is derived from the Latin word
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`hospitare, meaning to "receive a guest." (Dittmer, p. 5.) Additionally, as Dittmer
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`explains, "If the word hospitality refers to the act of providing food, beverages or
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`lodging to travelers then the hospitality industry consists of businesses that do
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`this." (Dittmer, pp. 5-6). Dittmer further states: "The hospitality industry provides
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`food, beverages, lodging or some combination of the three that other businesses
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`would provide only on the most incidental basis." (Dittmer, p. 6; emphasis added.)
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`Thus, the "traditional" and "ordinary and accustomed" definition of
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`hospitality was clearly adopted by the Dittmer authors as their understanding of the
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`meaning of “hospitality.” It would be clear error to disregard the evidence from
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`Dittmer 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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`6
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`CBM2015-00099
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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
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`allegedly "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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`broad sense of the term." (Inst. Dec. at 12.) The "term" that Dittmer refers to, in
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`regard to a "broad sense," is not "hospitality" (which Dittmer had already clearly
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`defined), rather it is "traveler" (the “broader definition" of "traveler" is referred to
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`in Dittmer on page 402).7 Thus, the comment on page 6 of Dittmer did not expand
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`or broaden the definition of "hospitality" that is set forth on page 5, nor would it
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`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 superset "Travel and Tourism" (a
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`different and unclaimed term), Dittmer stated:
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`7 "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 of “traveler” in the Glossary.)
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`7
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`CBM2015-00099
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`In this chapter and the two that follow, we will turn our attention from
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`the specifics of food, beverage and lodging operations to the larger
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`industry, of which hospitality operations are a part; travel and
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`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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`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 industry – 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
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`part 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. 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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`8
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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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`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 improperly importing
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`"travel/tourism" into the claims and replacing the actually claimed term
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`"hospitality" with the unclaimed and broader term "travel/tourism."
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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 the Federal Circuit held in Microsoft Corp. v.
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`Proxyconn, Inc., 789 F.3d 1292, 1299 (Fed. Cir. 2015) (internal citations omitted):
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`A construction that is "unreasonably broad" and which does not
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`"reasonably reflect the plain language and disclosure" will not pass
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`muster.
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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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`9
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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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`3. A full reading of Dittmer, including the excluded Glossary,
`compels the conclusion that Patent Owner's construction of
`"hospitality"(i.e., excluding "car rentals") is correct – and that
`“hospitality” “ordering” is for “food and drinks”.
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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. The Board misapprehended the selectively-
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`produced portions of Dittmer, and relied on Petitioner's argument that the parsed
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`exhibit supported its contentions, even though the entire (unproduced) Dittmer
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`reference contradicts Petitioner’s contentions and supports Patent Owner's
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`construction of "hospitality" that excludes car rentals.
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`The Glossary (pp. 530-560 of Exhibit 2040, the complete Dittmer reference),
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`i.e., the Dittmer authors' "dictionary of terms," includes the actual definitions
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`below, which confirm that the Board misapprehended the selectively-produced
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`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 guest”
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`10
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`CBM2015-00099
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`is a phrase that implies a host prepared to meet a guest's basic
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`requirements while that guest is away from home – food, beverages
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`and lodging. (Dittmer, p. 543; emphasis added)
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`Hospitality Industry: “The hospitality industry consists of businesses
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`that provide food, beverages, or lodging to travelers. (Dittmer, p.
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`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 will
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`be arriving at some later time or foodservice operators hold tables
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`for customers who will be coming later to dine. The guests or
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`customers may make their reservation for the same day or for some
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`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 any
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`resident of the United States, regardless of nationality, who travels
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`within the United States to a place one hundred or more miles away
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`from home or who stays away from home one or more nights in paid
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`accommodations and who returns home within twelve months, except
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`for those commuting to and from work attending school. The terms
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`traveler and tourist are commonly used interchangeably. ( 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 the
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`traditional hospitality businesses and a number of others closely
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`linked to them in such fields as entertainment, recreation, and
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`transportation, plus travel agencies and tour operators.” (Dittmer, p.
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`561; emphasis added)
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`Table Service: A type of service characterized by orders for food
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`11
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`CBM2015-00099
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`and beverages taken from customers seated at tables. The servers
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`taking the orders normally deliver the food and beverages to the
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`customers at their tables. (Dittmer, p. 558; emphasis added)
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`Drive-Through: A drive-through is an operation at which a customer
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`can drive a vehicle to a window to obtain and pay for food without
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`ever leaving the vehicle.” (Dittmer, p. 537; emphasis added)
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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. 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 '325 claims.
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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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`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.) Indisputably, Dittmer confirms that “auto rentals” are not in the
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`“hospitality industry,”–they are in fact outside of it–in the unclaimed/broader
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`“travel and tourism industry.” The Board’s own “hospitality” construction
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`therefore actually compels a reversal of the Board’s conclusion that “car rentals”
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`12
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`meet the recited “hospitality” limitations.
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`Hospitality reservations are defined by Dittmer as "lodging" or
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`"foodservice" reservations and do not include “car reservations.” This is also
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`consistent with the `325 prosecution history, as noted in the Preliminary Response:
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`As known in the art, a hospitality software application is, for example,
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`a piece of software used to provide operational solutions in hospitality
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`industries such as restaurants and hotels concerning, for example,
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`food ordering, menus, wait-lists and reservations.
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`Prelim. Response at 32-33 (quoting Exh. 2039, Nov. 1, 2001 Amendment).
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`Thus, the definitions from Dittmer are consistent with the `325 prosecution
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`history both as to "reservations," as described and claimed, being in relation to
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`restaurants and hotels and “hospitality ordering/orders” being orders for
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`food/drink. The fact that “ordering” in the `325 patent means "food" ordering is
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`confirmed again by the Dittmer definitions, quoted above, of the "table service"
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`and "drive through" terms used in `325 claims 2 and 3.8 Dittmer evidences the fact
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`that a POSITA would know that "orders" as claimed in the '325 patent are orders
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`for food, because that is the only type of “ordering” within the hospitality industry.
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`Dittmer also defines “reservations” in the '325 patent as only restaurant and hotel
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`8 Other claims of the patent at issue, both challenged and unchallenged, can be
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`valuable sources of enlightenment as to the meaning of a claim term. See Vitronics
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`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
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`13
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`CBM2015-00099
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`reservations within the hospitality industry. The Institution Decision erred by not
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`construing "orders" and "reservations" in the context of the well-established
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`hospitality industry definitions as shown, e.g., by Dittmer itself.
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`The Institution Decision likewise erred by not considering and construing
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`the claims themselves as a whole–i.e., the different “data” types recited in claims
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`11-13 must be construed in light of the “wherein the synchronized data relates
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`to” limitation, and clearly the recited “synchronized” data is “hospitality data” per
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`the “hospitality applications and data” limitation. The Board recognized that the
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`claims include a wherein clause which restricts the synchronized data to orders,
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`waitlists or reservations,9 but nonetheless inexplicably did not apply the wherein
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`clause “relates to” limitation to yield the correct construction for “orders” as
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`“relating to” the synchronized “hospitality data.” Moreover, “orders” in claim 11
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`can only be food orders, as would have been understood by a POSITA.
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`The Board also overlooked the applicability of claim differentiation to a
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`proper construction of the claims (see Prelim. Response at 63-64). The “ordering”
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`in claim 11 cannot be met with the same purported prior art functionality applied
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`to “reservations” in claim 13, and also not by "car rentals" or generic "goods or
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`9 “Finally, the claims recite a wherein clause for each of the three claims stating
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`that the synchronized data relates to order, waitlists, or reservations.” (Inst.
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`Dec. at 19; emphasis added.)
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`14
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`services" as the Board mistakenly concluded. (Inst. Dec. at 32). Patent Owner's
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`proposed constructions of "hospitality", and "orders" as "food orders" (see Prelim.
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`Response at 32-33), are the correct constructions pursuant to Dittmer and the
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`prosecution history, the claims, the specification and the other `325 claims. The
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`correct constructions compel the conclusion that Petitioner failed to put forth
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`sufficient evidence to meet the “central database” limitation for any claims and the
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`“orders” limitation for claim 11 and thus institution of trial was improper.
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`IV. CONCLUSION.
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`This issue presents a unique situation requiring reconsideration by the
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`Board. A review of the complete Dittmer reference confirms that the “orders” of
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`claim 11 are “food orders” and that the Dittmer authors' "traditional" and "ordinary
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`and accustomed" meaning of “hospitality” is consistent with the intrinsic evidence,
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`which (as Patent Owner asserted in the Preliminary Response) excludes “travel and
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`tourism” ("car rentals") and other travel/transportation functions. Further, in
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`accordance with the Board’s own “hospitality” construction, if the “services/tasks”
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`are not in the “hospitality industry,” – then they are not “hospitality applications.”
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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 Institution Decision, and hold that trial shall not be
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`instituted on claims 11-13 and 15 of the '325 Patent.
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`15
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`CBM2015-00099
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`Respectfully Submitted,
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` /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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`16
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`Dated: September 28, 2015
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`CBM2015-00099
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`CERTIFICATE OF SERVICE
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`I certify that, in accordance with 37 C.F.R. §42.6, a true and correct copy of
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`the foregoing PATENT OWNER'S REQUEST FOR REHEARING OF
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`INSTITUTION DECISION was served on September 28, 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
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`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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`
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`Dated: September 28, 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
`
`
`
`17
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