UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC., EVENTBRITE INC. and STARWOOD HOTELS & RESORTS
`WORLDWIDE, INC.,
`Petitioner
`
`v.
`
`AMERANTH, INC.
`Patent Owner
`
`____________
`
`Case CBM2016-00006
`Patent No. 6,871,325
`____________
`
`Submitted Electronically via the Patent Review Processing System
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`
`

`
`TABLE OF CONTENTS
`
`CBM2016-00006
`
`Page
`
`Contents
`
`STATEMENT OF PRECISE RELIEF REQUESTED ................................... 1
`I.
`INTRODUCTION .......................................................................................... 1
`II.
`III. THE PETITION DOES NOT ESTABLISH STANDING.............................. 4
`IV. CLAIM CONSTRUCTION............................................................................ 5
`1.
`“wireless handheld computing device”............................................ 5
`2.
`“central database” ......................................................................... 5
`3.
`“web page” .................................................................................... 6
`4.
`“web server” .................................................................................. 6
`5.
`“communications control module” .................................................. 6
`6.
`“synchronized”............................................................................... 7
`7.
`“hospitality applications”............................................................... 7
`8.
`“application program interface”................................................... 12
`9.
`“outside applications” .................................................................. 12
`10.
`“integration”................................................................................ 12
`11.
`“wherein the communications control module is an interface between
`the hospitality applications and any other communications protocol” ..... 12
`12.
`“wherein the synchronized data relates to ‘orders,’ ‘waitlists’ and
`‘reservations’” respectively as to claims 11, 12 and 13 ......................... 15
`V.
`THERE HAS BEEN NO SHOWING OF OBVIOUSNESS ........................ 19
`A. Neither §103 Challenge Provides Disclosure Or Suggestion Of
`“Hospitality Application” Functionality ................................................. 27
`B. There Is No Teaching Or Suggestion Of “A Central Database
`Containing Hospitality Applications And Data” ..................................... 28
`C. There Is No Disclosure Of Claims 11-13 First Wherein Clause .......... 30
`D. There Is No Disclosure Of Claims11-13 Element “b” ....................... 37
`E. There Is No Disclosure Of Claims 11-13 Element “d” ....................... 45
`
`-i-
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`

`
`CBM2016-00006
`
`F. Neither Reference Discloses An “Application Program Interface” That
`“Enables Integration of Outside Applications with the Hospitality
`Applications” ........................................................................................ 45
`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” 46
`H. Neither Combination 9 Or 11 Teaches The “Orders,” “Waitlists’ And
`“Reservations’ Hospitality Aspects Of Claims 11-13 As Properly
`Construedms .......................................................................................... 51
`I. Objective Evidence of Non-Obviousness .......................................... 52
`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 extensively licensed. ................................................ 61
`3. Ameranth's products enjoyed substantial, widespread, commercial
`success................................................................................................. 64
`4. Ameranth's 21st Century Restaurant received numerous technology
`awards and industry acclaim . ............................................................... 67
`5. Ameranth received overwhelming industry praise for the 21st Century
`Restaurant technology. ......................................................................... 69
`6.
`Starbucks and numerous other companies copied the Ameranth
`technology reflected in the challenged claims ...................................... 71
`7. Other companies tried and failed to develop the integrated,
`synchronized Ameranth technology . .................................................... 78
`8. Objective Evidence Conclusion. ....................................................... 80
`VI. CONCLUSION .............................................................................. 80
`
`-ii-
`
`

`
`TABLE OF AUTHORITIES
`
`CBM2016-00006
`
`Page
`
`Cases
`
`Allen Archery, Inc. v. Browning Mfg. Co.,
`819 F.2d 1087 (Fed. Cir. 1987)........................................................................... 69
`
`Ameranth v. Pizza Hut et al.,
`Case No. 3-11-cv-01810 (S.D. Cal. 2013) .......................................................... 56
`
`Berk-Tek LLC. v. Belden Techs., Inc.,
`IPR2013-00059, FWD 34 (PTAB April 28, 2014) ............................................ 36
`
`Columbia Univ. v. Symantec Corp.,
`No. 2015-1146, slip op. (Fed. Cir. Feb. 2, 2016)…...…………………………9,16
`
`Crocs, Inc. v. ITC, 598 F.3d 1294
`(Fed. Cir. 2010) .................................................................................................. 71
`
`Dynamic Drinkware, LLC v. National Graphics, Inc.,
`800 F.3d 1375 (Fed. Cir. 2015)........................................................................... 36
`
`Eli Lilly & Co. v. Zenith Goldline Pharmaceuticals, Inc.,
`471 F.3d 1369 (Fed. Cir. 2006)........................................................................... 67
`
`Gambro Lundia AB v. Baxter Healthcare Corp.,
`110 F.3d 1573 (Fed. Cir. 1997)...................................................................... 54,69
`
`In re GPAC Inc.,
`57 F.3d 1573 (Fed. Cir. 1995) ...................................................................... 54, 63
`
`Heidelberger v. Hantscho Prods.,
`
`-iii-
`
`

`
`CBM2016-00006
`
`21 F.3d 1068 (Fed. Cir. 1994)............................................................................. 72
`
`HIMPP v. Hear-Wear Techs., LLC,
`751 F.3d 1362 (Fed. Cir. 2014)........................................................................... 37
`
`In re Roufett,
`149 F.3d 1350 (Fed. Cir. 1998)........................................................................... 62
`
`Kurtz v. Belle Hat Lining Co., Inc.,
`280 F. 277 (2nd Cir. 1922) ................................................................................... 71
`
`Microsoft Corp.v. Proxyconn, Inc.,
`789 F.3d 1292 (Fed. Cir. 2015)............................................................................. 5
`
`PAR Pharma., Inc. v. TWI Pharm., Inc.,
`773 F.3d 1186 (Fed. Cir. 2014) ........................................................................... 22
`
`Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc.,
`711 F.3d 1348 (Fed. Cir. 2013)........................................................................... 56
`
`Power-One v. Artesyn Techs, Inc.,
`599 F.3d 1343 (Fed. Cir. 2010)..................................................................... 69, 76
`
`Rambus v. Rea,
`731 F.3d 1248 (Fed. Cir. 2013).................................................................... 55, 69
`
`Teva Pharm., Inc. v. Sandoz, Inc.,
`723 F.3d 1363 (Fed. Cir. 2013)........................................................................... 54
`
`Unique Concepts, Inc. v. Brown,
`939 F.2d 1558 (Fed. Cir. 1991)........................................................................... 38
`
`Vandenberg v.Dairy Equip. Co., a Div. of DEC Int’l, Inc.,
`740 F.2d 1560 (Fed. Cir. 1984)........................................................................... 75
`
`-iv-
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`

`
`CBM2016-00006
`
`Statutes
`
`35 U.S.C. §103..................................................................................................... 80
`
`Rules
`
`37 C.F.R. §42.207..................................................................................................... 1
`
`-v-
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`

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`CBM2016-00006
`
`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
`
`CBM2016-00006
`
`“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
`
`CBM2016-00006
`
`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)
`
`-viii-
`
`

`
`2035
`
`2036
`
`2037
`
`2038
`
`2039
`
`2040
`
`2041
`
`2042
`
`2043
`
`2044
`
`2045
`
`2046
`2047
`
`2048
`
`CBM2016-00006
`
`App. Ser. No. 11/112,990, Interview Summary (Oct.
`2011)
`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)
`
`[Not Used]
`
`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)
`Press releases and announcements of various Ameranth
`patent licenses and alliances
`
`-ix-
`
`

`
`2049
`
`2050
`
`2051
`
`2052
`
`2053
`
`2054
`
`2055
`
`2056
`
`2057
`
`2058
`
`2059
`
`2060
`
`2061
`
`2062
`
`2063
`
`2064
`
`CBM2016-00006
`
`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
`
`"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
`
`-x-
`
`

`
`2065
`
`2066
`
`2067
`2068
`
`2069
`2070
`2071
`
`2072
`
`2073
`2074
`
`2075
`2076
`
`2077
`
`2078
`2079
`
`2080
`
`2081
`
`CBM2016-00006
`
`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
`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
`
`-xi-
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`

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`CBM2016-00006
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`2082
`
`2083
`
`2084
`
`2085
`
`2086
`
`NRA Show Summary (May 2013)
`
`OLO Three Way Integration (May 14, 2015)
`
`OLO Launches Dispatch, Announces New Funding
`(January 25, 2016)
`
`OLO Website, API Integration Diagram (January 28,
`2016)
`
`Patent License Inquiries
`
`-xii-
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`

`
`CBM2016-00006
`
`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 Petitioner’s CBM review Petition (“Pet.”)
`
`against U.S. Patent No. 6,871,325 ("the '325 patent"). For the reasons below,
`
`the Petition should be denied.
`
`II. INTRODUCTION
`The Petition presents a single question–were the claims of the ‘325 patent
`
`obvious based on one or more combinations with the Brandt reference at the time
`
`of their invention? In addition to the failings of the asserted references, the actual
`
`demonstrable facts at the time of the invention compellingly show nonobviousness.
`
`Recognizing the difficulties of hindsight and bias, the Federal Circuit long ago
`
`established that “A retrospective view of the invention is best gleaned from those
`
`who were there at the time.” Interconnect Planning Corp. v. Feil, 774 F.2d 1132,
`
`1143 (Fed.Cir.1985) (emphasis added). Mr. John Harker of Symbol was there at
`
`the time, in May 1999, to observe with his own eyes and ears and confirm the
`
`market reaction at the National Restaurant Association Show (with thousands of
`
`exhibitors1) to the introduction of Ameranth’s 21st Century Restaurant™ System
`
`(clearly co-extensive with the claimed subject matter as detailed below) to the
`
`1 The NRA show has several thousand exhibitors, e.g., the 2012 show had over
`
`2000 exhibitors. (Exh. 2082).
`
`-1-
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`

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`CBM2016-00006
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`marketplace. Contemporaneous market reactions such as confirmed by Mr. Harker
`
`are usually unavailable as regards events this far in the past. Yet it is available in
`
`this case and from an entirely objective and uninterested witness.
`
`For example, Mr. Harker made an extensive statement submitted in the
`
`prosecution of Ameranth's '077 patent (Exh. 2062 at 171-72). The accuracy of this
`
`statement was sworn to by Mr. Harker (Exh. 2045 at Exh. pp. 97-106, 161-63, 172)
`
`via deposition testimony (taken in 2010 by attorneys from the law firm which now
`
`represents 18 of the Petitioner parties). Mr. Harker stated:
`
`Ameranth was arguably recognized as the overall most innovative
`company/technology at the May 1999 NRA show in Chicago,2 with
`hundreds of customers coming to its booth …
`
`[Also, in October 1999] Ameranth’s 21st Century Restaurant was
`awarded the “Innovation of the Year” award for the entire
`European Hospitality Technology Market. Ameranth was selected
`from first ahead of hundreds of different technology companies and
`this special and prestigious award further validated the uniqueness of
`Ameranth’s technology and its innovative vision.
`Exh 2062 at 172 (emphasis added); see also Exh. 2062 at 95-96.
`
`In his sworn 2010 deposition, Mr. Harker added:
`
`2 Mr. Harker’s observations were also confirmed by another independent source
`
`(the prestigious hospitality publication “Hospitality Technology” (Exh. 2062 at 65)
`
`(“the most audible ‘buzz’ heard on the show floor at McCormick Place”).
`
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`CBM2016-00006
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`Q. Do you have an idea of how many folks would have gone by the
`Ameranth booth in that time period? A. Well, walking by, I would
`say tens of thousands. Visiting, I would say hundreds. [Harker Dep.
`Tr., Exh. 2045 at 175-75 (Exh. pp. 200-01]
`Yes, at the May '99 show, the Ameranth booth was packed from,
`you know, opening, which is 9:00 a.m., to closing at 5:00 p.m., for
`four straight days, not only with restaurateurs, but with also the
`vendor community, the POS vendors, other hospitality technology
`providers.3 And, you know, I knew they would be busy. I was
`shocked at how busy they truly were. [Id. 93, lines 16-25 (Exh. p.
`106) (emphasis added)]
`
`This kind of a market reaction from hospitality customers, competitors and
`
`experts, would not occur for "obvious" inventions and/or as to products/technology
`
`that "already existed." Tradeshows in the hospitality market are purposed to show
`
`and demonstrate new technology and products; the traffic and interest that the
`
`company receives at these tradeshows is highly indicative of the novelty of their
`
`new products. That Ameranth had tens of thousands come by its booth, hundreds
`
`visit it, and that it was singled out as the “most innovative” out of thousands of
`
`exhibitors at the May 1999 NRA show and presented with the “Innovation of the
`
`3 Continental Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1273 (Fed.
`
`Cir.1991) ( “The objective considerations reflect the contemporary view of the
`
`invention by competitors and the marketplace.”) (emphasis added).
`
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`

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`CBM2016-00006
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`Year” award from among hundreds of other companies at the October 1999
`
`European show, conclusively demonstrates non-obviousness of the 21CR
`
`product/technology, which is co-extensive with the challenged claims, all of which
`
`is shown below in the Objective Evidence of Non-Obviousness Section below.
`
`Further, contemporaneous with the May 1999 show, or shortly thereafter, the
`
`following companies partnered with Ameranth: IBM, Microsoft, Symbol, JTECH,
`
`Customer Connection, Foodtrak, HSI, Positouch, Aloha/Radiant/NCR, Info-
`
`genesis/Agilysys, Squirrel POS, Food.com and Comtec. All of these companies
`
`did this with tiny Ameranth based only its product/technology embodied in the
`
`21CR Product and the ‘325 claims as shown below. Note also that Ameranth is
`
`continually contacted by companies, of their own accord, seeking patent licenses.
`
`Two such recent inquiries are shown in Exhibit 2086, demonstrating that Ameranth
`
`continually licenses its patents absent litigation or threat of litigation.
`
`These are confirmed facts. This and much more happened. This would not
`
`have happened if the Ameranth inventions were obvious or if others had previously
`
`“had them.” Hindsight cannot undo or refute these truths, and such truths are at the
`
`heart of the consideration of objective evidence against obviousness, which is
`
`required and compels a conclusion of non-obviousness in this case.
`
`III. THE PETITION DOES NOT ESTABLISH STANDING
`
`The Petition provided no analysis of the actual elements of the challenged
`
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`CBM2016-00006
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`claims; simply alleging that limitations are in the prior art, without addressing the
`
`functionality of the elements or the claims as a whole. The Petition does not even
`
`mention the claimed synchronization functionality, application and data storage on
`
`a handheld device or “integration” with “outside applications” as recited in claim
`
`12. The technological feature question cannot be resolved without considering the
`
`claim elements in context and as a whole.4
`
`IV. 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).
`
`1. “wireless handheld computing device”
`
`PO proposes “a wireless computing device that is sized to be held in one’s
`
`hand.” See Everingham Order (Exh. 2033 at 24)).
`
`2. “central database”
`
`PO proposes “a database file structure connected to the system in association
`
`with a central server, comprised of records, each containing fields, together with a
`
`4 PO submits that Petitioner was required to provide a basis for standing in the
`
`Petition and that referring to CBM2014-00015 cannot suffice. Also, if the Federal
`
`Circuit rules that the `325 patent is not a CBM patent and thus the earlier
`
`institution was improper, reliance thereon for this CBM dooms the current Petition.
`
`-5-
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`CBM2016-00006
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`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”).
`
`3. “web page”
`
`The PTAB construed consistent with its prior rulings to mean “a document,
`
`with associated files for graphics, scripts, and other resources, accessible over the
`
`internet and viewable in a web browser.” CBM2015-00091, Inst. Dec. 11; see also
`
`CBM2014-00015 (Exh. 1017 thereto at 8)).
`
`4. “web server”
`
`The Microsoft Computer Dictionary states in regard to “Web Server:” “See
`
`HTTP Server.” (Exh. 2042, p. 479), and defines “HTTP Server” as: “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, p.
`
`224). This definition should be adopted. Web Server is recited, its critical
`
`functionality in the claims has not been appreciated by the Petitioner or the Board,
`
`and the cited references do not meet this limitation as properly construed and
`
`relative to the CCM and third wherein clause of claims 11-13, as discussed below.
`
`5. “communications control module”
`
`This is a software layer, as Judge Payne concluded in prior district court
`
`-6-
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`CBM2016-00006
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`litigation stating that “the specification itself provides the best construction for the
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`term at issue.” (Exh. 2043 at 13). Based on the District Court constructions and
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`intrinsic evidence, PO proposes the following construction for the CCM:
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`a layer that sits on top of any communication protocol and acts as an
`interface between hospitality applications and the communication
`protocol. [See Exh. 1001 4:9-13 (same specification as ‘325 patent)]
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`Further, the software-based CCM provides the claimed “automatic” communi-
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`cations “routing” functionality as shown by the specification, e.g., “[a]communi-
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`cation control program monitors and routes all communications to the approp-
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`riate devices” which “must be running for proper communications to exist be-
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`tween all devices on the network.” (Exh. 1001 9: 21-22, 38-39 (emphasis added)).
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`As a functionally independent layer, the CCM also deals concurrently with both
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`HTTP and non-HTTP communications messaging protocols of the system as
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`claimed, and also supports integration of the separately recited API (which then
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`also deals with software application-to-application direct integration and with third
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`party systems/devices such as point-of-sale (POS) systems, discussed below).
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`6. “synchronized”
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`In another proceeding, the Board construed this term to mean “made, or
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`configured to make, consistent.” CBM2015-00080, Inst. Dec. 9.
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`7. “hospitality applications”
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`In CBM2015-00091, the Board correctly construed this term as “appli-
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`cations used to perform services or tasks in the hospitality industry.” However, this
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`was incomplete because it failed to establish the actual boundaries of the
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`“hospitality industry.” The specification states “hospitality applications, e.g.,
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`reservations, frequent customer ticketing, wait lists, etc.” Id., Inst. Dec. 12; Exh.
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`1001 4:6–7. Also, in distinguishing prior art in the `325 application, PO stated:
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`[H]ospitality software application is [] a piece of software used to
`provide operational solutions in hospitality industries such as
`restaurants and hotels, concerning [e.g.,] food ordering, menus,
`wait-lists, and reservations
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`Exh. 2039 at 7 (emphasis added). Nonetheless, the Board relied on Petitioner’s
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`misleadingly parsed excerpts from the Dittmer book to conclude that “hospitality”
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`referred to the broader “travel and transportation” industry (of which “hospitality”
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`is only a subset). In CBM2015-00091, the Board stated: “[o]ur construction of
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`hospitality includes businesses, such as car rental agencies, that provide services to
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`travelers.” Inst. Dec. 12. The Board mistakenly viewed PO’s proposed construction
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`as a “narrowing” of Petitioner’s proposal for the broader and unclaimed “travel and
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`transportation” industry and in so doing relied on a reference outside the correct
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`construction. Further, the correct definition of the skills/knowledge of a POSA
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`includes actual experience in the hospitality market, and such an experienced
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`POSA would have fully understood the difference between the actual “hospitality”
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`market and the broader “travel and tourism” market. Ameranth’s patents did not
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`mention the terms “travel” and “tourism.” “The only meaning that matters in claim
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`construction is the meaning in the context of the patent.” Columbia Univ. v.
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`Symantec Corp., No. 2015-1146, slip op. at 6 (Fed. Cir. Feb. 2, 2016). Thus a
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`POSA would have clearly understood the scope of the claims to exclude “car
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`rentals,” a subset of the broader “travel and tourism” market and not within the
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`“hospitality” subset. On this point, the Board stated: “the authors of the text
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`[Dittmer] discuss a ‘traditional view’ of hospitality that ‘refers to the act of
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`providing food, beverages, or lodging to travelers.’” (CBM2015-00091, Inst. Dec.
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`11) (emphasis added); see also Dittmer Glossary (Exh. 2040 at 543). Thus, the
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`Board’s own view of hospitality as including the “traditional ” restaurant processes
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`(as confirmed by Dittmer), was correct in part. However, the Board viewed the
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`definition too broadly due to the fact that it did not have access to the complete
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`Dittmer reference at the time. The full Dittmer reference (Exh. 2040), and in
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`particular the Glossary, compels a “hospitality” construction which excludes both
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`“car rentals” and the broader and unclaimed “travel/tourism” industry.
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`Critically, the Board now has before it and must consider the complete
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`evidentiary record which refutes Petitioner’s argument regarding
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`“hospitality” based on the Dittmer Book (full copy submitted as Exhibit
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`2040). Viewed in its entirety, as set forth in PO’s Request for Rehearing in
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`CBM2015-00091 (Paper No. 11), Dittmer clearly demonstrates that "hospitality
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`applications" do not include “car rentals” or other travel/transportation functions.
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`Confirming that the hospitality market definition was defined by the Dittmer
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`authors to be "food/beverages and lodging" for guests and that hospitality is
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`merely a subset of the larger superset "Travel and Tourism" (a different and
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`unclaimed term), Dittmer stated:
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`[W]e will turn our attention from the specifics of food, beverage and
`lodging operations to the larger industry, of which hospitality
`operations are a part; travel and tourism. [Exh. 2040 at 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 indus-
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`try" (Pet. at 37 (emphasis added)). The single "car rental" reference of Dittmer (p.
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`404), on which Petitioner relied for its incorrect argument that car rentals are part
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`of the hospitality industry–and which was also mistakenly relied on by the Board
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`(CBM2015-00091, Inst. Dec. 12)–was actually a listing of businesses of the broad-
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`er "travel industry.” (as discussed above, Dittmer confirmed that 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" thus eviscerates the meaning per
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`the intrinsic evidence. The word "hospitality" is key to the inventions and claims,
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`but the words "travel," "traveler" or "tourist" do not appear in the specifications,
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`claims, or prosecution history.
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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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`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. [Id. 543]
`Hospitality Industry[:] “The hospitality industry consists of busi-
`nesses that provide food, beverages, or lodging to travelers. [Id. 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. 561]
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`Thus as shown by Dittmer, a "car rental" is not a "hospitality application," nor a
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`hospitality "reservation," as those terms were understood in the hospitality market.
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`The Board’s established construction for "hospitality applications” is
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`“applications used to perform services or tasks in the hospitality industry.”
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`CBM2015-00091, Inst. Dec. 13 (emphasis added). Thus, indisputably, Dittmer
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`confirms that “auto rentals” are not in the “hospitality industry,”–they are in fact
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`outside of it–in the unclaimed/broader “travel and tourism industry.”
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`8. “application program interface”
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`The API is not a generic API divorced from its defined function within ‘325
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`claims 11-13. See also the proposed construction of “integration” below.
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`9. “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).
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`10. “integration”
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`In CBM2015-00080, the Board construed “integration” to mean “combining
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`of different activities, programs, or hardware components into a functional unit.”
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`Inst. Dec. 11. PO proposes adoption of this construction. This term and
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`construction must be considered in relation to the “CCM” and “outside
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`applications” terms as well.
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`11. “Wherein the communications contr