`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Zynga Inc.
`Petitioner
`
`V.
`
`Personalized Media Communications, LLC
`Patent Owner
`
`Case IPR2013-00156
`
`US. Patent No. 7,860,131
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S MOTION TO
`
`AMEND
`
`
`
`Table of Contents
`
`Page
`
`11.
`
`HI.
`
`Introduction ...................................................................................................... 1
`
`PMC Fails to Satisfy its Burden of Proof........................................................... 1
`
`PMC’s Proposed Construction for “Advertisement” Is Overly Narrow ............. 3
`
`Higgins invalidates the substitute claim ............................................................. 3
`
`A.
`
`B.
`
`Higgins discloses the “advertisement” limitation ................................. 3
`
`Higgins discloses “selecting a specific datum from said prestored
`data based on subscriber specific data” ................................................. 7
`
`Hedges invalidates the substitute claim ............................................................. 9
`
`A.
`
`B.
`
`Hedges discloses the “advertisement” limitation .................................. 9
`
`Hedges discloses “selecting a specific datum from said prestored
`data based on subscriber specific data” ............................................... 11
`
`VI.
`
`Conclusion ...................................................................................................... 1 4
`
`
`
`I.
`
`Introduction
`
`In response to the Board’s decision to institute this IPR proceeding, Patent
`
`Owner, Personalized Media Communications, LLC (“PMC”), filed a Motion to
`
`Amend (“Motion”) the claims at issue. As required by the Board, PMC has the
`
`burden to show that the proposed claims are patentable over the prior art of record
`
`and prior art not of record but known to PMC. PMC’s Motion, however, fails to
`
`even make a conclusory statement about the prior art not of record. PMC’s Motion,
`
`therefore, should be dismissed for this reason alone. Additionally, the Motion
`
`should be dismissed because the proposed amendments do not overcome the prior
`
`art of record, Higgins (US. Pat. No. 5,270,922) and Hedges (US. Pat. No.
`
`4,339,798), either when viewed individually or in combination with additional art.
`
`Moreover, the proposed amendments are flawed. Specifically, the proposed
`
`construction for the “advertisement” limitation is overly narrow, especially in light
`
`of the Board’s construction of “commercial” in a related IPR proceeding involving
`
`a related patent.
`
`Accordingly, the Board should deny PMC’s Motion to Amend.
`
`II.
`
`PMC Fails to Satisfy its Burden of Proof
`
`In IPR proceedings, a patent owner proposing a substitute claim has the
`
`burden “to persuade the Board that the proposed substitute claim is patentable over
`
`the prior art of record, and over prior art not of record but known to the patent
`
`
`
`owner.”
`
`(Idle Free Systems, Inc. v. Bergstrom, Ina, IPR2012-00027, Paper 66,
`
`Final Written Decision, at p. 34 (quoting Paper 26 at pp. 7-8).) The burden cannot
`
`be satisfied with “just a conclusory remark that no prior art known to the patent
`
`owner renders obvious the proposed substitute claims.” (1d)
`
`PMC’s Motion to Amend fails this burden of proof. With respect to the prior
`
`art of record, PMC fails to establish that the proposed substitute claim is patentable
`
`over Higgins and Hedges for reasons stated in Sections V and VI below. With
`
`respect to the prior art not of record but known to PMC, PMC has not even made a
`
`conclusory statement that its proposed claim is patentable over prior art not of
`
`record, let alone satisfying the higher burden of proof set forth in Idle Free.
`
`Furthermore, PMC cannot claim that it is unaware of any other prior art
`
`relevant to the patentability of the ‘131 patent because it was served with detailed
`
`invalidity contentions based on 18 distinct patents during PMC’s litigation against
`
`Zynga. Similarly, PMC is also aware of the 17 patents served against its US. Pat.
`
`No. 7,797,717 patent
`
`(““717 patent”)
`
`to show disclosure of the patent’s
`
`“commercial” limitation, which is closely related to the currently proposed
`
`“advertisement” limitation. Because PMC has made no representation what—so—ever
`
`that the substitute claim is patentable over these known prior art, PMC has failed to
`
`meet its burden set forth in Idle Free.
`
`
`
`III.
`
`PMC’s Proposed Construction for “Advertisement” Is Overly Narrow
`
`PMC proposes that the new term “advertisement” should be construed to mean
`
`“a notice or statement about goods, products or services for the purpose of attracting
`
`customers or supporters.” (Motion at p. 6.) The meaning of “advertisement,” however,
`
`should be at least as broad as “commercial,” which the Board has construed to mean
`
`“information for a particular product or service” in a related IPR proceeding involving
`
`the ‘717 patent, which has the same specification as that of the ‘ 131 patent. (IPR2013-
`
`00164, Paper 10 at p.
`
`’7.)
`
`Instead of arguing for a narrower construction from the
`
`Board, PMC could have incorporated it into its proposed amendment; but it did not.
`
`IV. Higgins invalidates the substitute claim
`
`A.
`
`Higgins discloses the “advertisement” limitation
`
`Higgins discloses a system for providing investors a variety of stock
`
`information to facilitate the purchasing of stocks. One type of information provided
`
`is stock prices.
`
`(Ex. 1007 at 6:1—5.) PMC argues that “just as a person of ordinary
`
`skill
`
`in the art would recognize that price attached to merchandise is not an
`
`advertisement, the price of a stock symbol displayed at display 107 cannot be
`
`interpreted to be an advertisement.” (Motion at p. 11.) Yet during its litigation
`
`against Zynga, PMC read the “commercial” limitation in its
`
`‘717 patent on
`
`precisely a display of “price attached to merchandise,” as evident from Figure 26 of
`
`PMC’s infringement contentions, reproduced below:
`
`
`
`
`
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`
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`
`(Ex. 1013 at p. 86.) These screen shots, which show prices for in-game currencies
`
`(5.6., crowns and coins), are characterized by PMC as “commercials.” (1d. at p. 85,
`
`“Figure 26 shows CastleVille screen shots of the ‘crown’ commercial on the left
`
`along with ‘coins’ commercial on the right.” ) Because a commercial is a narrower
`
`form of advertisement,
`
`the “commercials” shown in Figure 26 of PMC’s
`
`infringement contentions would necessarily be “advertisements” as well. Higgins’
`
`diSplay of stock prices is no different than the display of in-game currencies, which
`
`PMC contends are commercials (129., advertisements.)
`
`Moreover, as discussed in Section IV supra, the Board—using an identical
`
`specification as
`
`i
`that of the ‘131 patent—construed ‘commercial” to mean
`
`“information for a particular product or service.” (IPR2013-00164, Paper 10 at p. 7.)
`
`Higgins” stock quotes, which include price information for stocks, fall squarely under
`
`
`
`this definition. Because a commercial is a type of advertisement, Higgins’ stock quotes
`
`would necessarily also be an “advertisement.” (See Ex. 1021 at 1111 7-9.)
`
`In additional to stock quotes, Higgins also discloses an alert feature that notifies
`
`the user of stock prices that have, for example, dropped below a certain limit.
`
`(See Ex.
`
`1007 at 8:68-9:7, Fig. 2 at label 151; see also Ex. 1021 at 1] 10.) Pricing information
`
`about products—eSpecially when the price is lower than expected—is routinely used,
`
`without more, as a form of advertisement (tag, Subway’s “$5 foot long” promotion,
`
`McDonald’s “Dollar Menu,” etc.). In the context of stocks being the product, Higgins”
`
`out—of—limit notifications “are often used by brokers and investors as buy
`
`conditions
`
`and are of interest both to the broker and to his customers...” (Ex. 1007 at 5:11-15,
`
`emphasis added.) Thus, the out-of-limit alert is a notice about stocks for the pumose of
`
`attracting customers to buy the stock. This satisfies even PMC’s overly narrow
`
`
`construction of “advertisement,” which is “a notice or statement about goods, products
`
`or services for the pu_rpose of attracting customers or supporters.”
`
`(Motion at p. 6,
`
`emphasis added.)
`
`As yet another example of “advertisement,” Higgins discloses displaying
`
`stock dividend information.
`
`(See Ex. 1007 at 4:1-5; see also Ex. 1021 at 11 10.)
`
`Dividend is a payment made by a company to its shareholders and is a significant
`
`enticement for owning stocks. A high dividend—yielding stock attracts investors to
`
`purchase the stock, much like a bank’s high interest rate attracting customers to
`
`
`
`open savings or CD accounts. Thus, just as a bank’s display of “7% interest rate” is
`
`considered an “advertisement,” stock dividend information is
`
`similarly an
`
`“advertisement.”
`
`Other types of advertisements were also known to be delivered through
`
`information systems such as Higgins’.
`
`For example, Parsons (U.S. Pat. No.
`
`4,486,853)(attached at Ex. 1015) discloses an apparatus
`
`for
`
`receiving and
`
`diSplaying continuously updated “investment
`
`information,” much like Higgins.
`
`(Ex. 1015 at Abstract, 5:1-15.)
`
`In Parsons, data blocks carrying securities
`
`information include “promotional messages,” which “may be in the form of advice
`
`as to a particular security.” (Ex. 1015 at 16:8-9, 16:48-49, Fig. 1B.)
`
`Including
`
`such promotional message (corresponding to the claimed “advertisement”)
`
`in
`
`Higgins’ delivery of securities information would have been obvious to a POSITA.
`
`(See Ex. 1021 at ilil 11-14.)
`
`Similarly, Watson (U.S. Pat. No. 4,625,235)(attached at Ex. 1016) discloses a
`
`system allowing communications networks to switch between different sources of
`
`
`content, such as “news
`
`as well as regional and local commercial matter....” (EX.
`
`1016 at 1:1518, emphasis added.) Thus, it would have been obvious for a POSITA
`
`to modify Higgins” news field 149, which “forms a scrolling presentation of the
`
`news reported via the source 24,” to also display advertisements.
`
`(Ex. 1007 at 5:6—
`
`7, Fig. 2; see Ex. 1021 at 111115-17.)
`
`
`
`Accordingly, Higgins alone or in combination with either Parsons or Watson
`
`discloses the new “advertisement” limitation.
`
`B.
`
`Higgins discloses “selecting a specific datum from said prestored
`data based on subscriber specific data”
`
`Higgins’ system is operative to complete the stock information display in
`
`reSponse to the user’s keyboard entry, such that the user’s keyboard entry discloses
`
`the “subscriber Specific data” limitation of the substitute ‘131 claim.
`
`(See, e.g., Ex.
`
`1007 at Figs. 3-4; see also Ex. 1021 at 11 18.) PMC does not contest that the user’s
`
`keyboard entry meets the “subscriber specific data” limitation.
`
`(See Motion at p.
`
`12—13.) Rather, PMC only reiterates the same arguments it presented in its Patent
`
`Owner ReSponse, which does not relate to the new “subscriber specific data”
`
`limitation.
`
`(See Motion at p. 13, fn 2.) The inadequacy of those arguments has
`
`been fully addressed in Section II of Petitioner’s Reply to Patent Owner’s
`
`Response.
`
`Another example of Higgins’ disclosure of the “subscriber specific data”
`
`limitation occurs at block 312, where the system checks whether any limit has been
`
`exceeded.
`
`(1d. at 8:64—67.) The “prestored data” in this case is all the available lists
`
`(e. g, LRU, limit list, etc.), and the selected “specific datum” is the limit list.
`
`(Id. at
`
`8:24—31.) As clearly depicted in Figure 4, in order for the limit list to be selected
`
`for processing at block 312, the test at block 303 must have concluded that the
`
`incoming ticker message is found within “the list associated with limit processing.”
`
`
`
`(See id. at 8:44-51, 8:64-67, Fig. 4.) Thus, the “subscriber specific data” on which
`
`the selection of the limit list is based is the determination made at block 303 or the
`
`state of the computer program logic (1152., the fact that block 312 was reached).
`
`(See
`
`Ex. 1021 atfl 19.)
`
`Moreover, whether the limit
`
`list
`
`is selected and processed depends on
`
`whether the user is interested in displaying the limit information. Higgins” system
`
`allows a user to “specify various kinds of information desired for viewing” and
`
`specify a specific display format (e.g., a single-field or multi-field display).
`
`(Ex.
`
`1007 at 4:24-44; see Ex. 1021 at 1] 20.) A similar customizable display for “stock
`
`market
`
`information” is disclosed in more detail by Casey (US. Pat. No.
`
`3,792,462)(attached at EX. 1017).
`
`(See, e.g., Ex. 1017 at 5:29—34, 6:28-43, Figs. 1-
`
`5.) Casey further explains that, “[i]n addition to varying the size of the segment
`
`groups or areas for various modes, the information displayed in each segment of the
`
`display may also be varied for different modes.” (Ex. 1017 at 6:40—43.) If a display
`
`segment diSplaying one type of data (ag, quotes) is switched to diSplay a different
`
`type of data (e.g., “MIS” data), the system will “inhibit updating” of the non-
`
`displayed data.
`
`(See Ex. 1017 at 13:46—1422.) Thus, in light of Casey, a POSITA
`
`would find it obvious to modify Hedges such that the system selects and processes
`
`the limit list based on whether or not the user has chosen to display the limit field
`
`
`
`151 (12a,
`
`the “subscriber specific data”). Accordingly, Higgins alone or
`
`in
`
`combination with Casey discloses this limitation.
`
`(See Ex. 1021 at W 20-23.)
`
`V.
`
`Hedges invalidates the substitute claim
`
`A.
`
`Hedges discloses the “advertisement” limitation
`
`Hedges discloses a casino gaming system that displays playboards such as the
`
`craps table shown in Figure 5 below:
`
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`The playboard displays “payoff odds,” such as in the field labeled “ODDS
`
`THIS BET,” and additional payoff information for different bets (e. g., a “FIELD”
`
`bet “PAYS 2 TO 1”).
`
`(See Ex. 1008 at 4:9-13, Fig. 5.) The payoff odds of a bet
`
`conveys how much a player could win by placing money on that bet. This entices
`
`players to participate in the casino’s gambling service—without any payoff odds
`
`(1’.e., where the payoff is 0 to 1), no one would ever participate.
`
`
`
`The payoff odds also entices players to make bets that are probabilistically
`
`more favorable to the casino. For example, in craps the probability of rolling two
`
`6’s is much lower than the probability of rolling a combined total of “ANY
`
`SEVEN.” The casino is much more likely to win if the user bets on the former
`
`relative to the latter. In order to entice players to make this relatively less favorable
`
`bet (i.e., double 6’s), the casino informs the user that the payoff odds for betting on
`
`double 6’s (116., 30 to 1) is much greater than that of “ANY SEVEN” (£16., 4 to 1).
`
`Thus, even under PMC’s overly narrow definition,
`
`the payoff odds is an
`
`“advertisement” since it is a statement about the casino service for the purpose of
`
`attracting customers to place bets. (See Ex. 1021 at 1111 24-25.)
`
`Furthermore, other types of advertisements were commonly known to be
`
`delivered
`
`at gaming terminals.
`
`For
`
`example,
`
`Small
`
`(US.
`
`Pat. No.
`
`4,815,741)(attached at EX. 1018) disclosed an “automated marketing and gaming
`
`system” comprising a sweepstakes processor, which determines whether a user is a
`
`sweepstakes winner based on his card number.
`
`(See Ex. 1018 at Abstract, Fig. 7
`
`labels 32, 41, 45, and 49.) The prize for winning could take the form of a “coupon
`
`for use at a local store.” (Id. at 9:34-37.) In view of Small, a POSITA would find it
`
`obvious to modify Hedges’ system to use a player’s card data, read by the card
`
`reader,
`
`to enter
`
`the player
`
`into a sweepstake and display a coupon (5.6.,
`
`“advertisement”) if the player wins.
`
`(See Ex. 1021 at 111] 26-28.)
`
`-10-
`
`
`
`As another example, Dubno (U.S. Pat. No. 4,722,053)(attached at Ex. 1019)
`
`disc-loses a “food service ordering terminal with video game capability.” (Ex. 1019
`
`at Abstract, 1:1-3.) During game play the terminal displays food menu items, and at
`
`the end of game play it displays a message “inviting the patron
`
`to return and/or
`
`move to an establishment adjacent the restaurant and provide it with standard coin-
`
`operated computer games.”
`
`(See id. at 2:21-31, 2:54-60.)
`
`In view of Dubno, a
`
`POSITA would find it obvious to modify Hedges’ gaming system to display food
`
`menu items while players gamble and attract players to another establishment when
`
`the player
`
`leaves.
`
`Both the
`
`food menu and the
`
`invitation constitute
`
`“advertisement.” (See EX. 1021 at 1111 29-30.)
`
`B.
`
`Hedges discloses “selecting a specific datum from said prestored
`data based on subscriber specific data”
`
`Hedges’ remote gaming terminal (RGT) includes computer program modules
`
`for performing various gaming operations “in response to a stimulus from
`
`the
`
`player....” (Ex. 1008 at 9:10-14.) The specific operation is based in part on the
`
`data stored in RAM, which contains “information about
`
`the current state of
`
`operation of the RGT.”
`
`(Id. at 9:14—18.) PMC argues that the selection of data
`
`from the game state table is purely driven by the program modules and “there is no
`
`subscriber Specific data that is taken into consideration. . ..” (See Motion at p. 14—
`
`15.) This is an inaccurate, superficial characterization of Hedges’ disclosure, as the
`
`detailed implementation of Hedges shows that subscriber Specific data is used.
`
`-11-
`
`
`
`Hedges discloses that when a player touches the screen, a signal is sensed by
`
`the RGT, which “notes the position of the player’s touch and informs processor 41
`
`of FIG. 2 that a new command is being generated by the player.” (Ex. 1008 at 4:53-
`
`57.)
`
`In reSponse to the touch, the RGT generates a code indicating the touched
`
`location and checks the code “against a table of codes for panel locations which are
`
`allowed for the game or operational mode currently in effect.” (1d. at 11:48-53.)
`
`After determining the command intended by the player’s touch, the appropriate
`
`entry is placed into the task queue 166, which “prioritize[s] lists of task
`
`to be
`
`performed as maintained in RAM 92 of FIG. 9.” (Id. at 11:57-66, 9:18-21, 10:10—
`
`19.) Thus, while a player’s touch (the claimed “control signal”) triggers execution
`
`of the computer program, the eventual processing of the command is based on the
`
`command’s priority within the task list 166, which corresponds to the claimed
`
`“subscriber specific data.” (See Ex. 1021 at ii 31.)
`
`Further, the player’s command, which is determined by checking the user’s
`
`touch (“control signal”) location against the table of codes,
`
`is also “subscriber
`
`specific data.” (See Ex. 1021 at Ti 32.) For example, in a scenario where a player
`
`makes a wager, the command to bet is “subscriber specific data.” Based on this bet
`
`command, the RGT checks whether “it represents a valid input” (id. at 11:53),
`
`which may involve determining whether the wager “exceeded cash available” (id. at
`
`Fig. 4-6.). While Hedges does not provide implementation detail for this feature,
`
`-12-
`
`
`
`Levy (US. Pat. No. 3,810,627)(attached at Ex. 1020) does. Like Hedges, Levy
`
`discloses a “system for placing wagers from a remote location...” (Ex. 1020 at
`
`1:6-12.) When a player places a bet, the Levy system checks whether the bet
`
`“exceed[s] the available credit balance” and signals the player accordingly.
`
`(See id.
`
`at 18-22.)
`
`“If the player’s credit balance is sufficient the amount of the wager is
`
`reduced immediately upon the registering of the wager.” (1d. at 22—24.)
`
`In View of
`
`Levy, Hedges’ system—upon detecting a bet command (as opposed to other types
`
`of commands)—would select the player’s credit balance (tie, the selected “specific
`
`datum”) from the game status table (126., “prestored data”) and check if the player
`
`has sufficient credit to place the bet.
`
`If so, Hedges’ system calculates the ending
`
`balance and completes
`
`the display by placing the processed result
`
`(119.,
`
`“information”) into the display. (See EX. 1021 at W 33-35.)
`
`Accordingly, Hedges alone or
`
`in combination with Levy teaches the
`
`“subscriber specific data” limitation.
`
`-13-
`
`
`
`VI.
`
`Conclusion
`
`In View of the above, Petitioner requests that the Patent Owner’s Motion to
`
`Amend be denied.
`
`Date: 131mm 24, 2014
`
`
`
`oehran, Reg. No. 39,142
`David B.
`Joseph M. Sauer, Reg. No. 47,919
`JONES DAY
`
`North Point, 901 Lakeside Avenue
`Cleveland, Ohio 441 14
`
`(216) 586-3939
`
`-14-
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing Petitioner’s
`
`Opposition to Patent Owner’s Motion To Amend, along with all exhibits supporting
`
`and filed with the Opposition, were served on January 24, 2014 via email to:
`
`Thomas J. Scott, Jr.
`
`tscott
`
`oodwin rocter.com
`
`and
`
`Stephen Sc-hreiner
`
`sschreiner_@goodwinprocterc
`
`Dated: January 24, 2014
`
`By:
`
`
`
`APPENDIX OF EXHIBITS
`
`
`EXHIBIT
`
`NO.
`
`TITLE
`
`1001
`
`U.S. Patent No. 7,860,131 (“the Harvey ‘131 Patent”)
`
`1002
`
`1003
`
`1004
`
`1005
`
`1006
`
`PMC Infringement Contention Claim Charts against Zynga for the
`Harvey ‘l3l Patent, Personalized Media Communications, LLC v.
`Zynga, Inc, Civil Action No. 2:12-cv-68 (ED. Texas)
`
`Excerpt from the file history of the Harvey ‘131 Patent: March 15,
`1999 Supplemental Amendment
`
`Excerpt from the file history of the Harvey ‘ 131 Patent: September
`
`3, 2002 Office Action
`
`Excerpt from the file history of the Harvey ‘131 Patent: March 3,
`
`2003 Amendment
`
`Plaintiff 5 Disclosure of Asserted Claims and Infringement
`Contentions, Personalized Media Communications, LLC v. Zynga,
`Ina, Civil Action No. 2:12—cv—68 (ED. Texas)
`
`
`
`
`
`l
`
`I
`
`
`
`1007
`U.S. Patent No. 5,270,922 (“Higgins”)
`
`
`
`
`
`
`
`U.S. Patent No. 4,339,798 (“Hedges”)
`
`U.S. Patent No. 4,572,509 (“Sitrick”)
`
`Declaration of Dr. Charles J. Neuhauser Under 37 C.F.R. § 1.68 in
`Su ort of Petition for Inter Fortes Review of U.S. Patent No.
`
`
`
`
`
`7,860,131
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`101 1
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`Appendix to the Declaration of Dr. Charles J. Neuhauser: Dr.
`Neuhauser’s current curriculum vitae
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`1012
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`Rebuttal Declaration of Charles J. Neuhauser, PhD. Under 37
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`OF .R. § 1.68
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`1013
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`Excerpt from Expert Report of Mark Claypool, Ph.D., July 19,
`2013, Personalized Media Communications, LLC v. nga, Inc,
`Civil Action No. 2:12-cv-68 (ED. Texas)
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`1014
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`Deposition transcript of Samuel H. Russ, PhD (January 10, 2014)
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`1015
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`U.S. Patent No. 4,486,853 (“Parsons”)
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`1016
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`U.S. Patent No. 4,625,235 (“Watson”)
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`1017
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`U.S. Patent No. 3,792,462 (“Casey”)
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`1018
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`U.S. Patent no. 4,815,741 (“Small”)
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`1019
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`U.S. Patent No. 4,722,053 (“Dubno”)
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`U.S. Patent No. 3,810,627 (“Levy”)
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`1021
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`Declaration of Charles J. Neuhauser, PhD. Under 37 C .F.R. § 1.68
`in Support of Opposition to Patent Owner’s Motion to Amend
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