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 CBM2016-00007
`Patent No. 6,384,850
`____________
`
`Submitted Electronically via the Patent Review Processing System
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`
`

`
`TABLE OF CONTENTS
`
`CBM2016-00007
`
`Page
`
`Contents
`
`STATEMENT OF PRECISE RELIEF REQUESTED ................................... 1
`I.
`INTRODUCTION .......................................................................................... 1
`II.
`III. THE PETITION DOES NOT ESTABLISH STANDING.............................. 2
`IV. CLAIM CONSTRUCTION............................................................................ 3
`1. “wireless handheld computing device” ............................................ 3
`2. “central database” ........................................................................... 3
`3. “web page” ..................................................................................... 3
`4. “web server” ................................................................................... 4
`5. “communications control module”................................................... 4
`6. “synchronized” ............................................................................... 5
`7. “hospitality applications” ................................................................ 5
`8. “application program interface” .................................................... 11
`9. “outside applications” ................................................................... 11
`10. “integration” ................................................................................. 11
`11. “single point of entry for all hospitality applications” .................... 11
`12. “automatic” .................................................................................. 12
`13. “wherein the communications control module is an interface between
`the hospitality applications and any other communications protocol”... 12
`THERE HAS BEEN NO SHOWING OF OBVIOUSNESS ........................ 15
`V.
`A. Neither §103 Challenge Provides Disclosure Or Suggestion Of
`“Hospitality Application” Functionality ................................................. 23
`B. There Is No Teaching Or Suggestion Of “A Central Database
`Containing Hospitality Applications And Data” ..................................... 24
`C. There Is No Disclosure Of Claim 12 First Wherein Clause ................ 24
`D. There Is No Disclosure Of Claim 12 Element “b” ............................. 33
`E. There Is No Disclosure Of Claim 12 Element “d” ............................. 40
`
`-i-
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`

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`CBM2016-00007
`
`F. Neither Reference Discloses An “Application Program Interface” That
`“Enables Integration of Outside Applications with the Hospitality
`Applications” ........................................................................................ 41
`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” 42
`H. Claim As A Whole ......................................................................... 47
`I. Dependent Claims............................................................................ 47
`J. Objective Evidence of Non-Obviousness.......................................... 51
`1. There is a very strong nexus between the evidence of “secondary
`considerations" and the challenged claims. ........................................ 54
`2. The Ameranth patents in this family, including the challenged
`claims, have been successfully and extensively licensed. ................... 62
`3. Ameranth's products enjoyed substantial, widespread, commercial
`success. ............................................................................................ 65
`4. Ameranth's 21st Century Restaurant received numerous technology
`awards and industry acclaim after its introduction. ............................ 68
`5. Ameranth received overwhelming industry praise for the 21st Century
`Restaurant technology....................................................................... 70
`6. Starbucks and numerous other companies copied the Ameranth
`technology reflected in the challenged claims ................................... 72
`7. Other companies in the industry tried and failed to develop the
`Ameranth synchronization technology of the ‘850 patent................... 77
`8. Objective Evidence Conclusion. .................................................... 79
`VI. CONCLUSION .............................................................................. 80
`
`-ii-
`
`

`
`TABLE OF AUTHORITIES
`
`CBM2016-00007
`
`Page
`
`Cases
`
`Allen Archery, Inc. v. Browning Mfg. Co.,
`819 F.2d 1087 (Fed. Cir. 1987)........................................................................... 70
`
`Ameranth v. Pizza Hut et al.,
`Case No. 3-11-cv-01810 (S.D. Cal. 2013) .......................................................... 56
`
`Apple Inc. v. USITC,
`725 F.3d 1356 (Fed. Cir. 2013)........................................................................... 51
`
`Berk-Tek LLC. v. Belden Techs., Inc.,
`IPR2013-00059, FWD 34 (PTAB April 28, 2014) ............................................ 32
`
`Crocs, Inc. v. ITC, 598 F.3d 1294
`(Fed. Cir. 2010) .................................................................................................. 72
`
`Dynamic Drinkware, LLC v. National Graphics, Inc.,
`800 F.3d 1375 (Fed. Cir. 2015)........................................................................... 32
`
`Eli Lilly & Co. v. Zenith Goldline Pharmaceuticals, Inc.,
`471 F.3d 1369 (Fed. Cir. 2006)........................................................................... 68
`
`Gambro Lundia AB v. Baxter Healthcare Corp.,
`110 F.3d 1573 (Fed. Cir. 1997)..................................................................... 54, 70
`
`In re GPAC Inc.,
`57 F.3d 1573 (Fed. Cir. 1995) ...................................................................... 55, 64
`
`Heidelberger v. Hantscho Prods.,
`21 F.3d 1068 (Fed. Cir. 1994)............................................................................. 72
`
`-iii-
`
`

`
`CBM2016-00007
`
`HIMPP v. Hear-Wear Techs., LLC,
`751 F.3d 1362 (Fed. Cir. 2014)........................................................................... 33
`
`In re Roufett,
`149 F.3d 1350 (Fed. Cir. 1998)........................................................................... 63
`
`In re Van Geuns,
`988 F.2d 1181 (Fed. Cir. 1993)............................................................................. 9
`
`KSR Int'l Co. v. Teleflex, Inc.,
`550 U.S. 398 (2007) ………………………………………………………. 23,32
`
`Kurtz v. Belle Hat Lining Co., Inc.,
`280 F. 277 (2nd Cir. 1922) ................................................................................... 72
`
`Microsoft Corp.v. Proxyconn, Inc.,
`789 F.3d 1292 (Fed. Cir. 2015).......................................................................... 3,9
`
`PAR Pharma., Inc. v. TWI Pharm., Inc.,
`773 F.3d 1186 (Fed. Cir. 2014) ........................................................................... 18
`
`Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc.,
`711 F.3d 1348 (Fed. Cir. 2013)........................................................................... 57
`
`Power-One v. Artesyn Techs, Inc.,
`599 F.3d 1343 (Fed. Cir. 2010)..................................................................... 70, 76
`
`Rambus v. Rea,
`731 F.3d at 1256............................................................................... 51, 52, 55, 69
`
`Teva Pharm., Inc. v. Sandoz, Inc.,
`723 F.3d 1363 (Fed. Cir. 2013)........................................................................... 55
`
`-iv-
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`

`
`CBM2016-00007
`
`Unique Concepts, Inc. v. Brown,
`939 F.2d 1558 (Fed. Cir. 1991)........................................................................... 33
`
`Vandenberg v.Dairy Equip. Co., a Div. of DEC Int’l, Inc.,
`740 F.2d 1560 (Fed. Cir. 1984)........................................................................... 76
`
`Statutes
`
`35 U.S.C. §103.................................................................................................. 1, 80
`
`Rules
`
`37 C.F.R. §42.104................................................................................................... 50
`37 C.F.R. §42.22..................................................................................................... 50
`
`-v-
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`

`
`CBM2016-00007
`
`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
`
`CBM2016-00007
`
`“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
`
`CBM2016-00007
`
`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
`
`CBM2016-00007
`
`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
`
`CBM2016-00007
`
`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
`
`CBM2016-00007
`
`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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`CBM2016-00007
`
`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 Covered Business Method
`
`(“CBM”) review (“Petition” or “Pet.”) against U.S. Patent No. 6,384,850
`
`("the '850 patent"). For the reasons below, the Petition should be denied.
`
`II. INTRODUCTION
`Petitioner’s two 35 U.S.C. §103 challenges are both based on Brandt,
`
`which teaches away from the core inventive features of these claims, and Brandt is
`
`not even a “hospitality” application. Further still, for Petitioner to have even
`
`alleged that the ‘850 claims would have been “obvious” to a POSA at the time of
`
`the invention when Petitioner’s own expert admitted this same POSA would have
`
`been “bewildered”1 by the claimed synchronization of both “applications and data”
`
`at the core of these claims was disingenuous. And Petitioner’s allegation that the
`
`recited “central database” and storing “applications” was “not typical” (Dr. Helal
`
`testified that “it is not typical to store applications themselves in a database.”
`
`Exh. 1003 ¶ 98 (emphasis added)) further demonstrates the lack of credibility of
`
`the Petition assertions. These admissions alone confirm that there would have been
`
`no motivation for a POSA to combine the asserted references to seek to replicate
`
`functionality which was “bewildering” and “atypical,” and thus the opposite of
`
`1 “Synchronizing applications between a database, a handheld device, a web server,
`
`and a web page is bewildering.” Helal Decl. ¶105 (Exh. 1003) (emphasis added).
`
`-1-
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`

`
`CBM2016-00007
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`“obvious.”
`
`Further, in addition to the technical and legal infirmities of Brandt vis-à-vis
`
`the actually claimed subject matter, a large quantity of objective evidence confirms
`
`non-obviousness. The introduction of Ameranth’s breakthrough inventions into the
`
`hospitality market–embodied in its multiple award-winning 21st Century
`
`Restaurant™ System (“21CR”) (technology copied by Petitioner Starbucks)–
`
`achieved almost immediate success and received widespread and multi-
`
`dimensional acclaim which has continued for the last 17 years. The broad and
`
`extensive licensing of the `850 inventions/patents along with an extraordinary
`
`amount of other objective evidence against obviousness–consisting of six separate
`
`categories of secondary factors, all with a confirmed nexus to the novel features of
`
`the claims/invention as detailed below, strongly rebuts Petitioner’s flawed,
`
`incomplete and error-filled assertions of obviousness.
`
`III. THE PETITION DOES NOT ESTABLISH STANDING
`The Petition provided no analysis of the actual elements of the challenged
`
`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
`
`-2-
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`CBM2016-00007
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`claim elements in context and as a whole.2
`
`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). PO submits these proposals, which are
`
`supported by the intrinsic evidence and/or prior Markman rulings.
`
`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
`
`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,
`
`2 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 `850 patent is not a CBM patent and thus the earlier
`
`institution was improper, reliance thereon for this CBM dooms the current Petition.
`
`-3-
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`CBM2016-00007
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`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 (Page 479)). The Dictionary then states in regard to
`
`“HTTP Server:” “Server software that uses HTTP to serve up HTML documents
`
`and any associated files and scripts when requested by a client such as a web
`
`browser.” (Exh. 2042 (Page 224)). PO proposes that this definition be adopted.
`
`Web Server is a recited element, its critical functionality in the claims has not been
`
`appreciated by the Petitioner or the Board, and the cited references suffer critical
`
`infirmities in meeting this limitation as properly construed and relative to the CCM
`
`and the third wherein clause of claim 12, as discussed below.
`
`5. “communications control module”
`This is a software layer, as Judge Payne concluded in prior district court
`
`litigation stating that “the specification itself provides the best construction for the
`
`term at issue.” (Exh. 2043 at 13). Based on the District Court constructions and
`
`intrinsic evidence, PO proposes the following construction for the CCM:
`
`a layer that sits on top of any communication protocol and acts as an
`interface between hospitality applications and the communication
`protocol. [See Exh. 1001 4:9-13]
`Further, it is clear that it is the software-based CCM that provides the claimed
`
`-4-
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`CBM2016-00007
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`“automatic” communications “routing” functionality as shown by the specification,
`
`e.g., “[a]communication control program monitors and routes all communications
`
`to the appropriate devices” which “must be running for proper communications
`
`to exist between all devices on the network.” (Exh. 1001 9: 21-22, 38-39
`
`(emphasis added)). As a functionally independent layer, it is also the CCM that
`
`deals concurrently with both HTTP and non-HTTP communications messaging
`
`protocols of the system as claimed, and which also supports the integration of the
`
`separately recited API (which then also deals with software application-to-
`
`application direct integration and with third party systems/devices such as point-of-
`
`sale (POS) systems, as discussed further below).
`
`6. “synchronized”
`In another proceeding on the same patent, the Board construed this term to
`
`mean “made, or configured to make, consistent.” CBM2015-00080, Inst. Dec. 9.
`
`7. “hospitality applications”
`In CBM2015-00091, the Board correctly construed this term to mean
`
`“applications used to perform services or tasks in the hospitality industry.”
`
`However, this was incomplete because it failed to establish the actual boundaries
`
`of the “hospitality industry.” The specification states “hospitality applications,
`
`e.g., reservations, frequent customer ticketing, wait lists, etc.” Inst. Dec. 12; Exh.
`
`1001 4:6–7. Further, in distinguishing prior art in the `325 application, PO stated:
`
`[H]ospitality software application is [] a piece of software used to provide
`operational solutions in hospitality industries such as restaurants and
`
`-5-
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`CBM2016-00007
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`hotels, concerning [e.g.,] food ordering, menus, wait-lists, and reservations
`Exh. 2039 at 7 (emphasis added). Nonetheless, the Board relied on Petitioner’s
`
`misleadingly parsed excerpts from the Dittmer book to conclude that “hospitality”
`
`referred to the broader “travel and transportation” industry (of which “hospitality”
`
`is only a subset). In CBM2015-00091, the Board stated: “[o]ur construction of
`
`hospitality includes businesses, such as car rental agencies, that provide services to
`
`travelers.” Inst. Dec. 12 (“On this record, we are persuaded that the ordinary and
`
`customary meaning of hospitality is broad enough to encompass car rental
`
`activities.”). The Board mistakenly viewed PO’s proposed construction as a
`
`“narrowing” of Petitioner’s proposal for the broader and unclaimed “travel and
`
`transportation” industry and in so doing relied on a reference outside the correct
`
`construction. Further, the correct definition of the skills/knowledge of a POSA
`
`includes actual experience in the hospitality market, and such an experienced
`
`POSA would have fully understood the difference between the actual “hospitality”
`
`market and the broader “travel and tourism” market. Ameranth’s patents did not
`
`mention the terms “travel” and “tourism.” Thus a POSA would have clearly
`
`understood the scope of the claims to exclude “car rentals,” a subset of the broader
`
`“travel and tourism” market and not within the “hospitality” subset. Still further, as
`
`confirmed by an uninterested party with extensive knowledge in the field,
`
`“hundreds” of hospitality customers visited, and “tens of thousands” walked by,
`
`Ameranth’s booth at the launch of Ameranth’s 21CR product in May 1999. ( See
`
`-6-
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`

`
`CBM2016-00007
`
`Exh. 2045 at Exh. pp. 14-15, 175-77, 200-01). Thus a POSA at the time of the
`
`invention would have known that Ameranth’s inventions, embodied in the 21CR
`
`product (inclusive of The Improv Comedy Club’s event food ordering and event
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`ticketing system embodying the challenged claims, as detailed below), as
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`demonstrated publicly in May 1999 were directed to automating “the traditional
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`restaurant processes.” (Exh. 2044 at 1). On this point, the Board stated: “the authors
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`of the text [Dittmer] discuss a ‘traditional view’ of hospitality that ‘refers to the act
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`of providing food, beverages, or lodging to travelers.’” (CBM2015-00091, Inst.
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`Dec. 11) (emphasis added); see also Dittmer Glossary of Terms (Exh. 2040). Thus,
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`the Board’s own decision, in viewing hospitality as including the “traditional ”
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`restaurant processes (as confirmed by Dittmer), was correct in part. However, the
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`Board viewed the definition too broadly due to the fact that it did not have access to
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`the complete Dittmer reference at the time. The full Dittmer reference (Exh. 2044),
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`and in particular the Glossary, compels a “hospitality” construction which excludes
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`both “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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`CBM2016-00007
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`The full Dittmer book, including the Glossary, which actually defines the disputed
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`terms, confirms each disputed term to be consistent with PO's definitions of
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`“hospitality” and in direct contradiction to Petitioner's asserted definitions.
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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, 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" (Pet. at 37 (emphasis added)). Petitioner’s characterization was
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`backwards– in fact Dittmer confirms that “hospitality” is a sector of the broader
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`“Travel and Tourism” industry.
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`The single "car rental" reference of Dittmer (p. 404), on which Petitioner
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`relied for its incorrect argument that car rentals are part of the hospitality
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`industry–and which was also mistakenly relied on by the Board (CBM2015-00091,
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`CBM2016-00007
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`Inst. Dec. 12)–was actually a listing of businesses of the broader "travel industry.”
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`(as discussed above, Dittmer confirmed that car rentals are part of the superset of
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`"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. The inventors chose the term "hospitality" and not
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`"travel/tourism" (terms that are materially different as known to a POSA, as
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`detailed above), because they invented "hospitality applications" innovations (not
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`transportation innovations), and Ameranth has never asserted otherwise.
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`The broadening of the "hospitality" term into "travel/tourism" was error as
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`contravening the specification and the plain language of the claims and thus "will
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`not pass muster" under Proxyconn. It is well established that limitations are not to
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`be read from the specification into the claims. In re Van Geuns, 988 F.2d 1181,
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`1184 (Fed. Cir. 1993). Far worse is to read unclaimed limitations from an
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`extrinsic reference into the claims, which is what importing “travel and tourism”
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`into these claims would do. In any event, the extrinsic reference selected and relied
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`on by Petitioner itself unequivocally refutes Petitioner’s argument.
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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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`CBM2016-00007
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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. at 543]
`Hospitality Industry[:] “The hospitality industry consists of businesses that
`provide food, beverages, or lodging to travelers. [Id. at 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. at 561 (emphasis added)]
`As confirmed by these Dittmer definitions, a "car rental" is not a "hospitality
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`application," nor a hospitality "reservation," as those terms are understood in the
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`hospitality market. Rather than supporting the argument that Brandt teaches
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`"hospitality applications," Dittmer in fact disproves that argument, and Dittmer
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`itself shows that it is erroneous to read Brandt, a car-rental reference, to meet the
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`"hospitality applications" limitation or apply Brandt to the critical "central
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`database" limitation of the '850 claims.
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`In CBM2015-00091, the Board correctly recognized examples of hospitality
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`applications as, “e.g., reservations, frequent customer ticketing, waitlists, etc."
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`(Inst. Dec. at 12). The Board’s established construction for "hospitality
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`applications” is “applications used to perform services or tasks in the hospitality
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`CBM2016-00007
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`industry.” Id. 13 (emphasis added). Thus, indisputably, Dittmer confirms that
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`“auto rentals” are not in the “hospitality industry,”–they are in fact outside of it–in
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`the unclaimed/broader “travel and tourism industry.”
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`8. “application program interface”
`The API is not a generic API divorced from the definition of its function
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`within ‘850 claim 12. See also the proposed construction of “integration” below.
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`9. “outside applications”
`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”
`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. “single point of entry for all hospitality applications”
`The proper construction for this limitation is one that leverages Judge
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`Payne’s focused construction of “single point of entry” itself, but the complete
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`element needs to be considered as a whole to be consistent with the entirety of
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`claim 13 (as well as the specification description directly related to this element).
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`Judge Payne construed “a single point of entry” as “a center of communication.”
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`CBM2016-00007
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`(Exh. 2043 at 18). PO submits that this is the proper BRI construction but that the
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`full term in