Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper 8
`Entered: April 25, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`APPLE INC.
`Petitioner
`
`v.
`
`EVOLUTIONARY INTELLIGENCE, LLC
`Patent Owner
`_______________
`
`Case IPR2014-00080
`Patent 7,702,682 B2
`_______________
`
`
`
`Before KALYAN K. DESHPANDE, TREVOR M. JEFFERSON,
`BRIAN J. McNAMARA, NEIL T. POWELL, and GREGG I. ANDERSON,
`Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
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`
`

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`Case IPR2014-00080
`Patent 7,702,682 B2
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`
`I. INTRODUCTION
`
`A. Background
`
`Apple Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”) to institute an
`
`inter partes review of claims 1-23 of U.S. Patent No. 7,702,682 B2 (Ex. 1001, “the
`
`’682 patent”). See 35 U.S.C. § 311. Evolutionary Intelligence, LLC (“Patent
`
`Owner”) filed a Preliminary Response (Paper 6, “Prelim. Resp.”).
`
`The standard for instituting an inter partes review is set forth in 35 U.S.C.
`
`§ 314(a), which provides as follows:
`
`THRESHOLD.—The Director may not authorize an inter
`partes review to be instituted unless the Director
`determines that the information presented in the petition
`filed under section 311 and any response filed under
`section 313 shows that there is a reasonable likelihood
`that the petitioner would prevail with respect to at least 1
`of the claims challenged in the petition.
`
`Upon consideration of the petition, we conclude that Petitioner has not
`
`established a reasonable likelihood that it would prevail with respect to claims 1-23
`
`of the ’682 patent. Accordingly, we do not institute an inter partes review of
`
`claims 1-23 of the ’682 patent.
`
`
`
`B. Related Matters
`
`Patent Owner has sued Petitioner for infringement of the ’682 patent in
`
`Evolutionary Intelligence LLC v Apple Inc., Case No. 3:13-cv-04201-LB (N.D.
`
`Cal.), filed on October 23, 2012. Pet. 4. Petitioner was served on October 23,
`
`2012. Id. Petitioner also filed a petition for Inter Partes Review of claims 1-23 of
`
`the ’682 patent, IPR2014-00079, on October 22, 2013. Id. at 5.
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`Patent 7,702,682 B2
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`Petitioner indicates that the ’682 patent is also the subject of litigation in the
`
`following cases, originally filed in the Eastern District of Texas and transferred to
`
`the Northern District of California: Evolutionary Intelligence LLC v. Facebook,
`
`Inc., Case No. 3:13-cv-04202-JSC (N.D. Cal.); Evolutionary Intelligence LLC v.
`
`FourSquare Labs, Inc., Case No. 3:13-cv-04203-EDL (N.D. Cal.); Evolutionary
`
`Intelligence LLC v. Groupon, Inc., Case No. 3:13-cv-04204-LB (N.D. Cal.);
`
`Evolutionary Intelligence LLC v. LivingSocial, Inc., Case No. 3:13-cv-04205-EDL
`
`(N.D. Cal.); Evolutionary Intelligence LLC v. Millennial Media, Inc., Case No.
`
`5:13-cv-04206-HRL (N.D. Cal.); Evolutionary Intelligence LLC v. Twitter, Inc.,
`
`Case No. 5:13-cv-04207-KAW (N.D. Cal.); and Evolutionary Intelligence LLC v.
`
`Sprint Nextel Corp, Case No. 3:13-cv-4513-JCS (DMR) (N.D. Cal.) Pet. 5.
`
`
`
`C. References Relied Upon
`
`Petitioner relies upon the following prior art references:
`
`Ex. 1005 Wachtel
`
`Ex. 1006 Culliss
`
`Ex. 1008 Chang
`
`
`
`
`
`
`
`US 6,195,654 B1 Feb. 27, 2001
`
`US 6,006,222
`
`Dec. 21, 1999
`
`US 6,298,343
`
`Oct. 2, 2001
`
`Ex. 1007 Howe, A., et al., SavvySearch: A Meta-Search Engine that
`Learns which Search Engines to Query, AI MAGAZINE, January 28,
`1997 at 19. (“SavvySearch”)1
`
`
`
`
`
`
`
`
`
`
`
`
`
`1 Although Petitioner’s brief contains no discussion supporting its contention that
`SavvySearch (Ex. 1007) qualifies as a printed publication, Petitioner’s declarant,
`Henry Houh, states that Ex. 1007 was published in AI MAGAZINE in 1997 vol. 19,
`no. 2. Ex. 1003 ¶ 266.
`
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`Case IPR2014-00080
`Patent 7,702,682 B2
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`D. The Asserted Grounds
`
`Petitioner contends that the challenged claims are unpatentable based on the
`
`following specific grounds (Pet. 6-7):
`
`Reference[s]
`
`Basis
`
`Claim(s) Challenged
`
`Culliss
`SavvySearch
`Culliss and SavvySearch
`Culliss and Chang
`Culliss and Wachtel
`
`
`E. The ’682 Patent
`
`§ 102(e)
`§§ 102(a) and (b)
`§ 103
`§ 103
`§ 103
`
`1-23
`1-23
`4 and 23
`3, 5, and 6
`15 and16
`
`The ’682 Patent is directed to developing intelligence in a computer or
`
`digital network by creating and manipulating information containers with dynamic
`
`interactive registers in a computer network. Ex. 1001, 1:20-29, 3:10-16. The
`
`system includes an input device, an output device, a processor, a memory unit, a
`
`data storage device, and a means of communicating with other computers. Id. at
`
`3:17-22. The memory unit includes an information container made interactive
`
`with, among other elements, dynamic registers, a search engine, gateways, data
`
`collection and reporting means, an analysis engine, and an executing engine. Id. at
`
`3:26-35.
`
`The ’682 patent describes a container as an interactive nestable logical
`
`domain, including dynamic interactive evolving registers and maintaining a unique
`
`network-wide lifelong identity. Id. at 3:37-46. A container, at minimum, includes
`
`a logically encapsulated portion of cyberspace, a register, and a gateway. Id. at
`
`9:7-9. Registers determine the interaction of that container with other containers,
`
`system components, system gateways, events and processes on the computer
`
`network. Id. at 3:54-57. Container registers may be values alone or contain code
`
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`to establish certain parameters in interaction with other containers or gateways. Id.
`
`at 9:24-26. Gateways are structurally integrated into each container or strategically
`
`placed at container transit points. Id. at 4:63-66. Gateways govern the interaction
`
`of containers encapsulated within their domain by reading and storing register
`
`information of containers entering and exiting that container. Id. at 4:66-5:8,
`
`15:46-49.
`
`The system for creating and manipulating information containers is set forth
`
`in Figure 2B as follows:
`
`
`
`Figure 2B illustrates a computer network showing nested containers,
`
`computer servers, and gateways, at Site 1 through Site 7. Id. at 10:60-65. Any of
`
`Sites 1 through 7 may interact dynamically within the system, for example Site 1
`
`shows a single workstation with a container and gateway connected to an Intranet.
`
`Id.at 10:65-67. Site 2 shows a server with a gateway in relationship to various
`
`containers. Id. at 11:2-4. Site 3 shows an Internet web page with a container
`
`residing on it. Id. at 11:4-5. Site 4 shows a personal computer with containers and
`
`a gateway connected to the Internet. Id. at 11:5-6. Site 5 shows a configuration of
`
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`multiple servers and containers on a Wide Area Network. Id. at 11:6-8. Site 6
`
`shows a work station with a gateway and containers within a container connected
`
`to a Wide Area Network. Id. at 11:8-10. Site 7 shows an independent gateway,
`
`capable of acting as a data collection and data reporting site as it gathers data from
`
`the registers of transiting containers, and as an agent of the execution engine as it
`
`alters the registers of transient containers. Id. at 11:10-14.
`
`An example of a configuration the containers may have is provided in Figure
`
`4 as follows:
`
`Figure 4 shows example container 100 that includes containerized elements
`
`01, registers 120, and gateway 200. Id. at 13:1-3. Registers 120 included in the
`
`container 100 include, inter alia, active time register 102000, passive time register
`
`103000, neutral time register 104000, active space register 111000, passive space
`
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`register, 112000, neutral space register 113000, and acquire register 123000. Id. at
`
`14:31-40.
`
`
`
`F. Illustrative Claim
`
`
`
`Independent claim 1, reproduced below with paragraphs and roman
`
`numerals added, is illustrative of the claimed subject matter:
`
`1. A computer-implemented method comprising:
`
`[i]
`
`receiving a search query;
`
`first
`computer,
`the
`searching, using
`[ii]
`container registers encapsulated and
`logically
`defined in a plurality of containers to identify
`identified containers responsive to the search
`query, the container registers having defined
`therein data comprising historical data associated
`with interactions of the identified containers with
`other containers from the plurality of containers,
`wherein searching the first container registers
`comprises searching the historical data;
`
`[iii] encapsulating the identified containers in a
`new container;
`
`[iv] updating second container registers of the
`identified containers with data associated with
`interactions of the identified containers with the
`new container; and
`
`providing a list characterizing the identified
`[v]
`containers.
`
`
`
`II. ANALYSIS
`
`A. Claim Construction
`
`We determine the meaning of the claims as the first step of our analysis.
`
`The Board interprets claims using the broadest reasonable construction. See 37
`
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`C.F.R. § 100(b); Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766
`
`(Aug. 14, 2012). Claim terms generally are given their ordinary and customary
`
`meaning, as would be understood by one of ordinary skill in the art in the context
`
`of the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257
`
`(Fed. Cir. 2007). If an inventor acts as his or her own lexicographer, the definition
`
`must be set forth in the specification with reasonable clarity, deliberateness, and
`
`precision. Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1249
`
`(Fed. Cir. 1998).
`
`1. “container”
`
`Independent claims 1 and 18-23 recite the term “a plurality of containers”
`
`and “container.” As discussed above, the ’682 specification describes a container
`
`as an interactive nestable logical domain, including dynamic interactive evolving
`
`registers and maintaining a unique network-wide lifelong identity. Id. at 3:37-46.
`
`Petitioner argues that the ’682 specification further defines container as “a
`
`logically defined data enclosure which encapsulates any element or digital segment
`
`(text, graphic, photograph, audio, video, or other) or set of digital segments (text,
`
`graphic, photograph, audio, video, or other) or set of digital segments, or referring
`
`now to FIG. 3C, any system component or process, or other containers or sets of
`
`containers.” Pet. 9 (quoting Ex. 1001, 9:2-7). Petitioner argues that broadest
`
`reasonable construction, in light of the specification, “encompasses a logically
`
`defined data structure that contains a whole or partial digital element (e.g., text
`
`graphic, photograph, audio, video or other), or set of digital segments, or any
`
`system component or process or other containers or set of containers.” Id. at 9-10
`
`(emphasis added).
`
`Patent Owner argues that the parties’ proposed construction is circular and
`
`ignores the relationship between containers and encapsulation discussed in the
`
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`’682 specification. Prelim. Resp. 29-30. Patent Owner asserts that the proper
`
`broadest reasonable interpretation of “container” is “a logically defined data
`
`enclosure which encapsulates any element or digital segment (text, graphic,
`
`photograph, audio, video, or other), or set of digital elements.” Id. at 28-29
`
`(emphasis added).
`
`Patent Owner acknowledges that the parties’ proposed constructions differ in
`
`that Petitioner inserts the term “contain” for encapsulate. Pet. 29. Patent Owner’s
`
`proposed construction is narrower because of Patent Owner’s narrow interpretation
`
`of “logically defined” and “encapsulated.” Prelim. Resp. 29-30. Patent Owner
`
`argues that “encapsulation” refers to “treat[ing] a collection of structured
`
`information as a whole without affecting or taking notice of its internal structure”
`
`and further refers “to the process of wrapping data in protocols that allow its
`
`transmission from one network to another, as occurs when a web page is sent using
`
`HTML.” Id. at 29-30 (citing Ex. 2001).
`
`We are not persuaded by Patent Owner’s contentions. The ʼ682 patent states
`
`that “[a] container 100 at minimum includes in its construction a logically
`
`encapsulated portion of cyberspace, a register and a gateway” and “[a container] at
`
`minimum encapsulates a single digital bit, a single natural number or the logical
`
`description of another container, and at maximum all defined cyberspace, existing,
`
`growing and to be discovered, including but not limited to all containers, defined
`
`and to be defined in cyberspace.” Ex. 1001, 9:7-14. The ’682 patent also states
`
`that “container 100 contains the code to enable it to interact with the components
`
`enumerated in 2A and reconstruct itself internally and manage itself on the
`
`network.” The ’682 patent does not describe the terms “logically defined” or
`
`“encapsulated” as limited to the “structured information as a whole” regardless of
`
`its internal structure or “wrapping data” in preparation for transmission. The
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`claims do not require such limitations. Therefore, we do not agree with Patent
`
`Owner that “logically defined” and “encapsulated” requires anything more than
`
`simply “contained within.”
`
`Accordingly, based on the proposed construction by Petitioner and Patent
`
`Owner, and for purposes of this decision, we conclude that “container” means a
`
`logically defined data enclosure which encapsulates any element or digital segment
`
`(text, graphic, photograph, audio, video, or other), or set of digital elements.”
`
`2. “register” and “container register”
`
`Petitioner contends that “register,” as recited in the claims, should be
`
`construed to “encompass a value or code associated with a container,” and that
`
`“container register” should be construed to be “a register that is appended to the
`
`logical enclosure of an information container.” Pet. 10-11. Petitioner’s
`
`construction relies on the ’682 patent specification. Id. (citing Ex. 1001, 14:24-29,
`
`9:19-23).
`
`The Patent Owner contends that “register,” as recited in the claims, is
`
`consistent with the ordinary meaning of the term in computing. Prelim. Resp. 30.
`
`Patent Owner cites two dictionaries in support of the construction that “register” is
`
`“a memory location within a computer that stores data.” Id. at 31 (citing Exs.
`
`2002, 2003). Patent Owner also notes that the ’682 patent specification discussion
`
`of “dynamic registers” as part of containers comports with this proposed
`
`construction. Id. at 31 (citing Ex. 1001, 2:66-3:5, 3:14-15, 3:29-32). Following
`
`this construction, Patent Owner contends that a “container register” should simply
`
`be construed as “a register of a container.” Id.
`
`The ’682 patent discusses dynamic registers are part of containers that make
`
`the container interactive. Ex. 1001, 3:26-32. As discussed above, the ’682 patent
`
`describes a container as “an interactive nestable logical domain configurable as
`
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`both subset and superset, including a minimum set of attributes coded into dynamic
`
`interactive evolving registers, containing any information component, digital code,
`
`file, search string, set, database, network, event or process, and maintaining a
`
`unique network-wide lifelong identity.” Id. at 3:40-45. In discussing registers, the
`
`’682 specification states that “[r]egisters 120 are user or user-base created or
`
`system-created values or ranges made available by the system 10 to attach to a
`
`unique container, and hold system-set, user-set, or system-evolved values.” Id. at
`
`14:24-27. Such “[r]egisters 120 may be active, passive or interactive and may
`
`evolve with system use” (id. at 14:29-31) and are “unique in that they operate
`
`independently of the encapsulated contents” of an information container (id. at
`
`13:4-6). The ’682 specification also refers to memory unit 22 as including
`
`container 100 and container registers 120. Id. at 8:46-48.
`
`In light of the foregoing, we disagree with Patent Owner that the broadest
`
`reasonable interpretation of a register is a memory location for storing data. With
`
`respect to “container registers,” the ’682 patent states:
`
`Container registers 120 are interactive dynamic values
`appended to the logical enclosure of an information container
`100, and serve to govern the interaction of that container 100
`with other containers 100, container gateways 200 and the
`system 10, and to record the historical interaction of that
`container 100 on the system 10. Container registers 120 may
`be values alone or contain code to establish certain parameters
`in interaction with other containers 100 or gateways 200.
`
`Id. at 9:19-26. Therefore, we are persuaded that the broadest reasonable
`
`construction of “register,” as that term is used in the ’682 patent, is a “value or
`
`code associated with a container.” Such a construction encompasses the values
`
`associated with a container as described in the ’682 patent. Furthermore, a
`
`“container register” is a register appended to a container.
`
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`3. “gateway”
`
`Independent claims 18, 20, and 22 recite “a plurality of gateways.”
`
`Petitioner contends that the ’682 patent does not expressly define gateway as a
`
`standalone term but refers to it as an interface between process, system
`
`components and data files, such as containers or registers. Pet. 11 (citing Ex. 1001,
`
`4:66-5:6). Petitioner argues that container gateways are defined expressly as
`
`“logically defined gateways residing both on containers 100 and independently in
`
`the system 10.” Ex. 1001, 9:28-32. Petitioner further argues that the broadest
`
`reasonable interpretation of gateway encompasses code that governs interactions
`
`between containers and that can alter registers associated with containers. Pet. 12.
`
`Patent Owner cites a computing dictionary definition of gateway as a device
`
`that connects two networks (Prelim. Resp. 32-33), but agrees that the ’682 patent
`
`refers also to logical gateways created by manipulation of programming on a
`
`computer (Prelim. Resp. 33). Thus, a gateway may be logic embodied in software.
`
`Patent Owner argues that a person of ordinary skill in the art would understand that
`
`a “gateway” is “a hardware device that facilitates the transfer of information
`
`between containers, systems and/or processes on two different networks or
`
`devices, or software that processes network data.” Id. at 34.
`
`We disagree with Patent Owner. The ’682 specification states that “unique
`
`gateways” are “structurally integrated into each container, or strategically placed
`
`within a network at container transit points” such that these
`
`[g]ateways gather and store container register
`information according to system-defined, system-
`generated, or user determined rules as containers exit and
`enter one another, governing how containers system
`processes or system components interact within the
`domain of that container, or after exiting and entering
`that container, and governing how containers, system
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`components and system processes interact with that
`unique gateway, including how data collection and
`reporting is managed at that gateway.
`
`Ex. 1001, 4:63-5:6. Gateways are described logically as being “nestable in a
`
`hierarchical or set and class network scheme” and are not limited to a particular
`
`network. Id. at 4:65-66. Accordingly, we do not agree that, as used in the ’682
`
`patent, gateways are limited to “hardware devices” for communicating across two
`
`different networks as proposed in Patent Owner’s construction or limited to
`
`software that processes network data. Prelim. Resp. 33-34. Indeed, in the ’682
`
`patent gateways may be integrated into each container, which is logically defined.
`
`Ex. 1001, 4:63-5:6.
`
`We also disagree with Petitioner’s construction that focusses on the gateway
`
`only as it relates to containers and registers. Indeed, the ’682 patent describes
`
`gateways as entities of an information container system in Fig. 3C (Ex. 1001,
`
`12:31-61) and as part of a conventional computer network shown in Fig. 2B (Ex.
`
`1001, 10:60-11:2).
`
`Based on the record before us, the broadest reasonable interpretation of
`
`“gateway” in light of the’682 specification is hardware or software that facilitates
`
`the transfer of information between containers, systems, and/or processes.
`
`4. “encapsulated” and “encapsulating”
`
`Patent Owner contends that “encapsulation” refers to “treat[ing] a collection
`
`of structured information as a whole without affecting or taking notice of its
`
`internal structure.” Prelim. Resp. 35 (citing Ex. 2001). Petitioner does not offer a
`
`construction for encapsulated or encapsulating.
`
`As discussed above with respect to “container,” we are not persuaded by
`
`Patent Owner that the broadest reasonable interpretation of “encapsulate” means
`
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`“the process of preparing information for transmission over a network by treating it
`
`‘as a whole, without affecting or taking notice of its internal structure.’”
`
`Accordingly, we construe “encapsulated” to mean “contained within” and
`
`“encapsulating” to mean “containing within” for the same reasons discussed above.
`
`5. “new container”
`
`Patent Owner contends that “new container” as recited in the claims of the
`
`’682 patent requires that the container “have recently come into existence” and
`
`must not have existed prior to performance of the claimed step. Prelim. Resp. 36.
`
`Petitioner offers no construction but argues the “new container” includes updating
`
`a pre-existing file. Pet. 15, 27.
`
`We determined above that “container” is a logically defined data enclosure
`
`which encapsulates any element or digital segment (text, graphic, photograph,
`
`audio, video, or other), or set of digital elements. The ’682 patent states that
`
`“[r]egisters 120, once constructed, may be copied and appended to other containers
`
`100 with their internal values reset, to form new containers.” Ex. 1001, 13:20-23
`
`(emphasis added). Thus, new containers are not limited to those that recently came
`
`into existence, but also are formed when they are copied with new internal values.
`
`Id. Thus, we decline to construe “new container” as limited to those containers
`
`that did not exist previously as Patent Owner suggests.
`
`6. “polling”
`
`Petitioner does not offer a proposed construction for polling but equates it to
`
`querying in the comparison of the ’682 patent claims to the prior art. Pet. 22.
`
`Patent Owner contends that the proper construction of polling is “to periodically
`
`collect data from.” Prelim. Resp. 36-37 (citing Ex. 2001 for dictionary definition).
`
`Patent Owner contends that this construction comports with the plain meaning of
`
`the term as understood by one skilled in the art and the specification, which
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`provides examples of repeated, periodic data access via gateways. Id. at 36-37
`
`(citing Ex. 1001, 20:12-16, 20:21-32, 5:55-63, 10:44-50, 23:58-65).
`
`The ’682 patent does not use the term “polling” apart from claims 18, 20,
`
`and 22, which recite “polling” a “plurality of gateways.” The ’682 patent
`
`specification, however, discusses gateways using a time scheduler to set reporting
`
`frequency. Ex. 1001, 20:21-22. The ’682 patent also states that “[t]he gateways
`
`report the register information or make it available for collection by the data
`
`reporting and collection means” as part of the gateway process. Id. at 23:59-61.
`
`Based on the record before us, we agree with Patent Owner and construe
`
`“polling” to mean periodically collecting data from.
`
`
`
`B. Asserted Grounds of Unpatentability
`
`1. Anticipation based on Culliss (Ex. 1006)
`
`Petitioner contends that Culliss anticipates claims 1-23 under 35 U.S.C.
`
`§ 102(e). Pet. 12-25. Petitioner’s brief and arguments cite the Declaration of
`
`Henry Houh, Ph.D., (“Houh”) (Ex. 1003) to support Petitioner’s contentions.
`
`a. Culliss (Ex. 1006)
`
`Culliss, entitled “Method for Organizing Information,” discloses an
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`invention where a user’s search activity on the internet is monitored and used to
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`organize articles displayed in the search results. Ex. 1006, 2:65-3:2. “The
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`invention operates by assigning scores to key terms and categories for articles. As
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`users enter search queries and select articles, the scores are altered. The scores are
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`then used in subsequent searches to organize the articles that match a search
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`query.” Id. at 3:2-6.
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`The Culliss invention maintains an index of key words or terms where
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`articles on the internet are associated with key words. Id. at 3:56-65. A search
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`engine query is received and used to identify articles based on the key terms
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`associated with the user’s search query. Id. at 3:56-58, 4:10-15. Terms that match
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`the search query used to identify articles are called “matched key terms.” Id.
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`Figure 1, shown below, illustrates the operation of the search engine that uses these
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`key terms.
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`Figure 1 illustrates that a search engine query is received and used to
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`identify articles and alter the scores contained in the index. Id. at 3:39-40. Steps
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`20 and 30 of Figure 1 disclose that users select articles from squibs or excerpts of
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`the results to the first query. Id. at 4:25-34. Step 40, in Figure 1, shows that the
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`key term scores for the selected matched article under the matched key terms are
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`altered relative to other key term scores based on a user’s selection of an article in
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`response to a query. Id. at 4:37-40, 4:47-49. The altered index then is used in
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`subsequent searches as shown in steps 50 and 60 of Figure 1. Id. at 5:1-4.
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`b. Anticipation of Independent Claims 1, 19, and 21
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`Petitioner argues Culliss discloses “searching, using the computer, first
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`container registers encapsulated and logically defined in a plurality of containers to
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`identify identified containers responsive to the search query,” as specified by claim
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`1, as well as corresponding elements in claims 19 and 21. Pet. 14. Specifically,
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`Petitioner contends that in Culliss “[e]ach of these data elements [used in the index
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`disclosed in Culliss, such as key term score, key term total score] operates as a
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`‘container register’ that will be encapsulated and logically defined within the index
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`(a ‘container’) and articles (‘identified containers’) associated with a particular
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`search query.” Id. (citing Ex. 1003 ¶¶ 116-125, 133-135). Thus, Patent Owner
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`contends that Petitioner fails to explain which disclosures in Culliss meet the claim
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`limitations for “first container registers encapsulated and logically defined in a
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`plurality of containers” as recited in claim 1. Prelim. Resp. 38 (emphasis added).
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`Specifically, Patent Owner argues that Petitioner has failed to show that the single
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`index disclosed in Culliss (Ex. 1006, 3:56-57, 10:38-42) discloses the “plurality of
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`containers” limitation as the index constitutes only one container. Id.
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`We agree with Patent Owner that Petitioner has failed to show that the single
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`index in Culliss containing the index data elements identified by Petitioner as the
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`“container register” meets the “plurality of containers” limitation of claim 1. In
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`support of its contention, Petitioner relies on the Houh declaration, which states
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`that the data within the index “operates as container registers that are encapsulated
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`and logically defined within the index (containers) and articles (identified
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`containers) that are associated with a particular search query.” Ex. 1003 ¶ 146
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`(citing Ex. 1003 ¶¶ 116-125, 133-135). Petitioner’s numerous citations to the
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`Houh declaration refer to different types of indexing that may be contained in “the
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`index.” Ex. 1003 ¶¶ 116-125, 133-135 (discussing various indexing embodiments
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`disclosed in Culliss). Although we agree that Culliss discloses numerous types of
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`indexing based on different scoring alteration methods, each of these methods
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`refers to data elements contained within the index that make up the “container
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`registers” as identified by Petitioner. Pet. 14. These data elements are maintained,
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`however, in a single index. Ex. 1006, 3:56-57, 10:38-42. Petitioner has not shown
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`persuasively that the single index of Culliss is a “plurality of containers” that
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`encapsulates the index data. See Pet. 13-14. Instead, Culliss discloses a single
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`index that contains various scoring methods.
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`We also are not persuaded by Petitioner’s contention that Culliss discloses
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`“updating second container registers of the identified containers with data
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`associated with interactions of the identified containers with the new container,” as
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`recited in element [iv] of claim 1 (emphasis added) and similarly recited in claims
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`19 and 21. Petitioner states that the articles identified by the search query
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`correspond to the claimed “identified containers” that are encapsulated in a new
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`container. Pet. 16 (stating that “[t]he collection of squibs, therefore, is a new
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`container that encapsulates the articles identified by the search query.”). Petitioner
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`further contends updating score information in the index for each of the articles
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`with data reflecting when users interact with the squibs of articles in the search
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`results, as disclosed in Culliss, is akin to “updating second container registers of
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`identified containers,” where the articles identified by the search query are the
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`“identified container.” Id. at 17 (citing Ex. 1003 ¶¶ 116-125, 133-135). In sum,
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`Petitioner contends that the index (a container) that contains (encapsulates) data
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`within the index (identified as “first container registers”) (Pet. 13-14) also contains
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`“second container registers” that are claimed to be of the “identified containers”
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`(specifically, the articles identified by the search query). Id. at 16.
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`We are not persuaded by Petitioner’s argument. Culliss shows that a single
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`index is updated based on a user’s interaction. Ex. 1006, 3:56-57, 10:38-42.
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`Petitioner has not provided persuasive evidence or argument showing that updating
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`this single index equates to updating the second container register of the identified
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`containers where the identified containers are the actual articles identified by a
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`search query. Indeed, Petitioner’s own contentions describe the data (the first
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`register) as contained within the index (a container). Pet. 13-14. Petitioner has not
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`shown that the index (a container) also contains the second registers of the
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`identified containers (articles). Culliss teaches updating data in the index, not data
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`or registers of the articles (identified containers).
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`Based on the foregoing, we are not persuaded that Culliss discloses
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`container registers (data in the index) encapsulated and logically defined in a
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`plurality of containers, as the index disclosed in Culliss is single container. We
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`also are not persuaded that Culliss discloses “updating second container registers
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`of the identified containers” by altering the data in the Culliss index. Accordingly,
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`we determine that Culliss does not anticipate independent claim 1 and its
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`dependent claims 2-17. Independent claims 19 and 21 recite similar limitations for
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`“first container registers encapsulated and logically defined in a plurality of
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`containers” and “second container registers of the identified containers.”
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`Therefore, we are also not persuaded that Culliss anticipates claims 19 and 21 for
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`the reasons discussed above with respect to claim 1.
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`Based on the foregoing, we determine that there is not a reasonable
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`likelihood that the Petitioner would prevail in showing that independent claims 1,
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`19, and 21 and dependent claims 2-17 are anticipate