Trials@uspto.gov
`571-272-7822
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` Paper 12
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` Entered: April 28, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FACEBOOK, INC.
`Petitioner
`
`v.
`
`EVOLUTIONARY INTELLIGENCE, LLC
`Patent Owner
`
`
`
`Case IPR2014-00093
`Patent 7,010,536 B1
`
`
`
`Before KALYAN K. DESHPANDE, TREVOR M. JEFFERSON,
`BRIAN J. McNAMARA, NEIL T. POWELL, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
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` Paper 12
`
`
` Entered: April 28, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FACEBOOK, INC.
`Petitioner
`
`v.
`
`EVOLUTIONARY INTELLIGENCE, LLC
`Patent Owner
`
`
`
`Case IPR2014-00093
`Patent 7,010,536 B1
`
`
`
`Before KALYAN K. DESHPANDE, TREVOR M. JEFFERSON,
`BRIAN J. McNAMARA, NEIL T. POWELL, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`Case IPR2014-00093
`Patent 7,010,536 B1
`
`
`I.
`
`INTRODUCTION
`
`Facebook, Inc. (“Petitioner”) filed a Petition requesting an inter partes
`
`review of claims 15 and 16 of U.S. Patent No. 7,010,536 B1 (Ex. 1001, “the
`
`’536 patent”). Paper 1 (“Pet.”). Evolutionary Intelligence, LLC (“Patent
`
`Owner”) filed a Preliminary Response. Paper 9 (“Prelim. Resp.”). We have
`
`jurisdiction under 35 U.S.C. § 314.
`
`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 determine that the information
`
`presented by Petitioner has not established that there is a reasonable
`
`likelihood that Petitioner would prevail in showing the unpatentability of
`
`claims 15 and 16 of the ’536 patent. Accordingly, we do not institute an
`
`inter partes review of these claims.
`
`A. Related Proceedings
`
`Petitioner indicates that the ’536 patent is the subject of litigation in
`
`the following cases: Evolutionary Intelligence LLC v. Apple, Inc., Case No.
`
`3:13-cv-04201-WHA (N.D. Cal.); Evolutionary Intelligence LLC v. Yelp
`
`Inc., Case No. 4:13-cv-03587-DMR (N.D. Cal.); 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.
`
`2
`
`
`
`Case IPR2014-00093
`Patent 7,010,536 B1
`
`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. 4:13-
`
`cv-04207-KAW (N.D. Cal.); and Evolutionary Intelligence LLC v. Sprint
`
`Nextel Corp., Case No. 3:13-cv-04513-JCS (N.D. Cal.). Pet. 1-2.
`
`Additionally, the ’536 patent is the subject of the following inter
`
`partes reviews: IPR2014-00082, IPR2014-00083, IPR2014-00085,
`
`IPR2014-00086, and IPR2014-00092.
`
`B. The ’536 Patent
`
`The ’536 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, 1:11-20;
`
`3:1-5. 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 3:6-11. The memory unit includes an information
`
`container made interactive with, among other elements, dynamic registers, a
`
`search engine, gateways, a data collection and reporting means, an analysis
`
`engine, and an executing engine. Id. at 3:15-23.
`
`A container is an interactive nestable logical domain, including
`
`dynamic interactive evolving registers and maintaining a unique network-
`
`wide lifelong identity. Id. at 3:29-35. A container, at minimum, includes a
`
`logically encapsulated portion of cyberspace, a register, and a gateway. Id.
`
`at 9:2-4. Registers determine the interaction of that container with other
`
`containers, system components, system gateways, events, and processes on
`
`the computer network. Id. at 3:43-46. Container registers may be values
`
`alone or contain code to establish certain parameters in interaction with other
`
`3
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`containers or gateways. Id. at 9:19-22. Gateways are structurally integrated
`
`into each container or strategically placed at container transit points. Id. at
`
`4:54-57. 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 4:58-66; 15:46-49.
`
`The system for creating and manipulating information containers is
`
`set forth in Figure 2B, which is reproduced below:
`
`
`
`Figure 2B illustrates a computer network showing nested containers,
`
`computer servers, and gateways at Site 1 through Site 7. Id. at 10:59-62.
`
`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 10:64-67. Site 2 shows a server with a
`
`gateway in relationship to various containers. Id. at 11:2-3. Site 3 shows an
`
`Internet web page with a container residing on it. Id. at 11:3-4. Site 4 shows
`
`a personal computer with containers and a gateway connected to the
`
`Internet. Id. at 11:4-6. Site 5 shows a configuration of multiple servers and
`
`containers on a Wide Area Network. Id. at 11:6-7. Site 6 shows a work
`
`4
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`station with a gateway and containers within a container connected to a
`
`Wide Area Network. Id. at 11:7-9. 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 11:8-13.
`
`An example of a configuration the containers may have is provided in
`
`Figure 4, included below:
`
`
`
`Figure 4 shows an example of container 100 that includes
`
`containerized elements 01, registers 120, and gateway 200. Id. at 12:65-67.
`
`Registers 120 included in container 100 include, inter alia, active time
`
`register 102000, passive time register 103000, neutral time register 104000,
`
`active space register 111000, passive space register 112000, neutral space
`
`register 113000, and acquire register 123000. Id. at 14:31-39.
`
`5
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`
`C. Illustrative Claim
`
`Petitioner challenges claims 15 and 16 of the ’536 patent. Pet. 11-51.
`
`Independent claim 15 is illustrative of the claims at issue:
`
`15. An apparatus for transmitting, receiving and
`manipulating information on a computer system, the apparatus
`including a plurality of containers, each container being a
`logically defined data enclosure and comprising:
`an information element having information;
`a plurality of registers, the plurality of registers forming
`part of the container and including
`a first register for storing a unique container
`identification value,
`a second register having a representation
`designating time and governing interactions of the
`container with other containers, systems or processes
`according to utility of information in the information
`element relative to an external-to-the-apparatus event
`time, and
`at least one acquire register for controlling whether
`the container adds a register from other containers or
`adds a container from other containers when interacting
`with them; and
`a gateway attached to and forming part of the container,
`the gateway controlling the interaction of the container with
`other containers, systems or processes.
`
`D. The Alleged Grounds of Unpatentability
`
`The information presented in the Petition sets forth Petitioner’s
`
`contentions of unpatentability of claims 15 and 16 of the ’536 patent under
`
`35 U.S.C. §§ 102 and 103, as follows (see Pet. 4, 11-51):
`
`Reference(s)
`Zhang1
`
`Basis
`§ 102(e)
`
`Claims Challenged
`15 and 16
`
`
`
`1 U.S. Patent No. 6,016,478 (Ex. 1002) (“Zhang”).
`
`6
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`Case IPR2014-00093
`Patent 7,010,536 B1
`
`
`Basis
`Reference(s)
`Cooper2
`§ 102(e)
`Cooper, Fortune,3 and Veditz4 § 103(a)
`
`
`Claims Challenged
`15
`16
`
`II. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are
`
`interpreted according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14,
`
`2012). 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). Also, claim terms 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. In re Translogic Tech., Inc., 504
`
`F.3d 1249, 1257 (Fed. Cir. 2007).
`
`1. “container”
`
`Independent claims 15 and 16 recite “a plurality of containers, each
`
`container being a logically defined data enclosure.” As discussed above, the
`
`ʼ536 patent specification describes a container as an interactive nestable
`
`logical domain, including dynamic interactive evolving registers and
`
`maintaining a unique network-wide lifelong identity. Ex. 1001, 3:29-35.
`
`
`
`2 U.S. Patent No. 5,737,416 (Ex. 1003) (“Cooper”).
`3 U.S. Patent No. 6,073,090 (Ex. 1004) (“Fortune”).
`4 U.S. Patent No. 6,496,793 B1 (Ex. 1005) (“Veditz”).
`
`7
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`Petitioner argues that the broadest reasonable interpretation of a “container”
`
`is “a logically defined data enclosure that encapsulates any element or digital
`
`segment or set of digital segments, any system component or process, or
`
`other containers or sets of containers.” Pet. 8-9. Patent Owner similarly
`
`proposes that the broadest reasonable construction of “container” is “a
`
`logically defined data enclosure which encapsulates any element or digital
`
`segment (text, graphic, photographic, audio, video, or other), or set of digital
`
`elements.” Prelim. Resp. 12-14 (emphasis omitted). Patent Owner further
`
`argues that “encapsulated” refers to “treat[ing] a collection of structured
`
`information as a whole without affecting or taking notice of its internal
`
`structure” and “encapsulated” 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 13-14 (citing Ex. 2001).
`
`On this record, we are not persuaded by Patent Owner’s arguments.
`
`The ’536 patent states that a container “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, 9:2-9. The ’536 patent does not describe that the
`
`terms “logically defined” or “encapsulated” as limited to “structured
`
`information as a whole” regardless of its internal structure or “wrapping
`
`data” in preparation for transmission. The claims also do not require such
`
`8
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`limitations. Accordingly, we do not agree with Patent Owner that “logically
`
`defined” or “encapsulated” require anything more than “contained within.”5
`
`Accordingly, based on the proposed construction of “container” by
`
`both Petitioner and Patent Owner, and for the purposes of this decision, we
`
`construe “container” to mean “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”
`
`Independent claims 15 and 16 recite “a plurality of registers, the
`
`plurality of registers forming part of the container.” Petitioner proposes that
`
`the plain meaning of “register” is “value and/or code associated with a
`
`container” based on the context of “register” in the ʼ536 patent specification,
`
`where container registers “may be values alone or contain code to establish
`
`certain parameters in interaction with other containers 100 or gateways 200.”
`
`Pet. 9-10 (citing Ex. 1001, 9:19‐22).
`
`Patent Owner argues that the term “register,” based on dictionary
`
`definitions, encompasses “a group of (usually) bistable devices that are used
`
`to store information within a computer system for high speed access” and “a
`
`memory location within a microprocessor, used to store values and external
`
`memory addresses while the microprocessor performs logical and arithmetic
`
`operations on them.” Prelim. Resp. 14 (citing Exs. 2002, 2003). Based on
`
`
`
`5 Related U.S. Patent No. 7,702,682 B2, the patent at issue in IPR2014-
`00079 and IPR2014-00080, recites the terms “logically defined” and/or
`“encapsulated” in independent claims 1 and 19-23. Our interpretation of
`these terms is consistent with our analysis in IPR2014-00079 and IPR2014-
`00080.
`
`9
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`Patent 7,010,536 B1
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`these dictionary definitions, Patent Owner proposes that “register” means “a
`
`memory location within a computer that stores data.” Id. at 14-15. Patent
`
`Owner acknowledges that its proposed construction is similar to Petitioner’s
`
`construction, but argues that Petitioner’s construction is unreasonably broad
`
`and may encompass unpatentable subject matter. Id. at 15.
`
`We disagree with Patent Owner. Specifically, we do not agree with
`
`Patent Owner that “register” must require “a memory location within a
`
`computer.” The ’536 patent specification, including the claims, do not
`
`impose such a limit to the meaning of “register.” The ’536 patent describes
`
`“container registers” as follows:
`
`interactive dynamic values
`Container registers 120 are
`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.
`
`Ex. 1001, 9:14-23. We are not persuaded that “register” must include “a
`
`memory location within a computer” and, therefore, find that the broadest
`
`reasonable construction of “register,” as it is used in the ʼ536 patent, is
`
`“value or code associated with a container.”
`
`3. “gateway”
`
`Independent claims 15 and 16 recite “a gateway attached to and
`
`forming part of the container, the gateway controlling the interaction of the
`
`container with other containers, systems or processes.” Petitioner argues
`
`that gateways “gather and store container register information according to
`
`system-defined, system-generated, or user determined rules . . . governing
`
`10
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`Patent 7,010,536 B1
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`how containers, system components and system processes interact with that
`
`unique gateway, including how data collection and reporting is managed at
`
`that gateway.” Pet. 10 (citing Ex. 1001, 4:58-66). Based on this description
`
`from the ’536 patent, Petitioner proposes that “gateway” means “code that
`
`governs a container’s interactions with other containers, systems, or
`
`processes, or that can modify information within containers and/or
`
`registers.” Id. at 10-11.
`
`Patent Owner argues that a person with ordinary skill in the art would
`
`understand that a “gateway” is “a device that interconnects two networks.”
`
`Prelim. Resp. 15 (citing Ex. 2002). Patent Owner further argues that this
`
`definition is consistent with the ’536 patent claims, where claim 1 recites the
`
`“gateway controlling the interaction of the container with other containers,
`
`systems or processes.” Id. at 16. Patent Owner also argues that this
`
`definition is consistent with the ’536 patent specification, where the
`
`specification describes that a “gateway” is a server, is structurally integrated
`
`into containers, and includes software to process network data. Id. at 16-17
`
`(citing Ex. 1001, Fig. 2B, claim 1, claim 13, 4:54-55). Accordingly, Patent
`
`Owner proposes that “gateway” should be construed as “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 17.
`
`We are not persuaded by Patent Owner that “gateway” requires these
`
`additional limitations. The ’536 patent describes “gateways,” stating that
`
`[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
`
`11
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`
`components interact within the domain of that container, or
`after exiting and entering that container, and governing how
`containers, system components and system processes interact
`with that unique gateway, including how data collection and
`reporting is managed at that gateway.
`
`Ex. 1001, 4:58-66. The ’536 patent further describes that gateways are
`
`“nestable in a hierarchical or set and class network scheme.” Id. at 4:54-57.
`
`Thus, we do not agree with the Patent Owner that a “gateway,” as used in
`
`the ʼ536 patent, is limited to a hardware device. We further do not agree
`
`with Patent Owner that a “gateway” facilitates only the transfer of
`
`information on two different networks or devices because the’536 patent
`
`provides an example of a gateway governing the interaction of two
`
`containers regardless of whether the containers are on two different
`
`networks of devices.
`
`Accordingly, we construe “gateway” to mean “hardware or software
`
`that facilitates the transfer of information between containers, systems,
`
`and/or processes.”
`
`B. Claims 15 and 16 – Anticipated by Zhang
`
`Petitioner contends that claims 15 and 16 are unpatentable under
`
`35 U.S.C. § 102(e) as anticipated by Zhang. Pet. 12-27.
`
`1. Zhang (Ex. 1002)
`
`Zhang discloses a software-based system for managing and
`
`scheduling time-based events for multiple individuals. Ex. 1002, 1:16-22.
`
`The computer system is operated using a computer software system. Id. at
`
`5:25-27. One or more applications may be loaded for execution by the
`
`system. Id. at 5:30-33. One such application software includes a personal
`
`information management (PIM) system, such as Sidekick®. Id. at 5:50-58.
`
`12
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`A functional overview of the group scheduling system is set forth in
`
`Figure 2, which is reproduced below:
`
`
`
`Figure 2 illustrates scheduling system 200 includes local client 210,
`
`which further includes front end software for entering scheduling
`
`information and generating group scheduling messages. Id. at 6:48-53.
`
`Local client 210 connects to messaging engine 220 to send and receive
`
`messages from remote clients 240, 250, and 260, regardless of the particular
`
`platform or software applications used by remote clients 240, 250, and 260.
`
`Id. at 2:30-34, 6:53-57, 7:7-32.
`
`The client software application presupposes three different types of
`
`remote clients, which are all capable of electronic messaging: (1) remote
`
`clients 240, who share the same software group scheduling subsystem as the
`
`local client, referred to as “SK client[s]”; (2) remote clients 250, who do not
`
`share the group scheduling software provided by the local client, but access
`
`their email accounts using an HTML-based web browser, referred to as
`
`“non-SK client[s] with browser”; and (3) remote clients 260, who have
`
`email addresses, but do not share the same software group scheduling
`
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`subsystem as the local client and do not have HTML-based browsers,
`
`referred to as “simple email client[s].” Id. at 7:7-32, 45, 54-55. Each
`
`message is structured to facilitate the highest degree of information content
`
`appropriate for each of the different types of remote clients. Id. at 7:52-55.
`
`This is achieved by incorporating into the message different formats of the
`
`scheduling message for each particular client type. Id. at 7:52-55.
`
`2. Analysis
`
`The evidence set forth by Petitioner does not indicate a reasonable
`
`likelihood that Petitioner will prevail in showing that claims 15 and 16 are
`
`unpatentable under 35 U.S.C. § 102(e) as anticipated by Zhang. Pet. 11-27.
`
`Petitioner contends, inter alia, that Zhang discloses “a plurality of
`
`containers” and “a plurality of registers, the plurality of registers forming
`
`part of the container.” Id. at 13-19. Petitioner specifically argues that
`
`Zhang’s “group scheduling item” or GROUP_ITEM describes a plurality of
`
`claimed “containers” and the structure of GROUP_ITEM lists values
`
`relating to the event that describe the claimed “registers.” Id. (citing Ex.
`
`1002, 18:25–19:28).
`
`Claims 15 and 16 further recite an “acquire register for controlling
`
`whether the container adds a register from other containers or adds a
`
`container from other containers when interacting with them.” Petitioner
`
`argues that Zhang allows a user to attach optionally a file to the group
`
`scheduling item and this information, including the size and name of the file,
`
`is stored within the GROUP_ITEM “container” in a nested structure. Pet.
`
`22 (citing Ex. 1002, 12:3-5, 19:6-8, Fig. 5F). Petitioner argues that the
`
`attached file is the claimed other “container” and the claimed “acquire
`
`register” includes the file size and file name. Id. Patent Owner argues that
`
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`Zhang uses an attachment pointer, a pointer that points to a group attachment
`
`data structure in order to attach a file, and the attachment pointer does not
`
`control whether the GROUP_ITEM “container” adds a “register,” as
`
`required by claims 15 and 16. Prelim. Resp. 22.
`
`We are unpersuaded by Petitioner. Although the attached file in
`
`Zhang is stored with the GROUP_ITEM, Petitioner has failed to establish
`
`that there is an “acquire register” in the GROUP_ITEM “container” that
`
`controls whether the GROUP_ITEM adds a “register” or “container.”
`
`Petitioner merely asserts that the “acquire register” includes the file size and
`
`file name, but does not provide persuasive evidence that either the file size
`
`or file name controls whether GROUP_ITEM adds a “register” or
`
`“container” from the attached file. Additionally, Petitioner fails to establish
`
`that the file size and file name are part of the GROUP_ITEM “container,”
`
`such that they can serve as the “acquire register.” Also, Petitioner argues
`
`that the attached file is the claimed “other container,” but does not establish
`
`clearly that the attached file is a “container” within the meaning of claims 15
`
`and 16.
`
`In light of these deficiencies, we are not persuaded that Petitioner has
`
`established a reasonable likelihood that Petitioner would prevail in showing
`
`that claims 15 and 16 are anticipated by Zhang.
`
`C. Claim 15 – Anticipated by Cooper
`
`Petitioner contends that claim 15 is unpatentable under 35 U.S.C.
`
`§ 102(e) as anticipated by Cooper. Pet. 28-44.
`
`1. Cooper (Ex. 1003)
`
`Cooper is directed to a method and apparatus for temporarily
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`encrypting and restricting access to software objects. Ex. 1003, 1:37-40.
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`Software objects are provided on a computer-accessible memory media
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`along with a file management program. Id. at 2:33-35. The file
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`management program restricts access to the software object for a predefined
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`and temporary trial period. Id. at 2:45-48. Encrypted software objects are
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`decrypted when the software object is called. Id. at 2:51-54.
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`The software is input to the encryption engine, where the encryption
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`engine utilizes a real key to encrypt the software object. Id. at 8:58-62. The
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`vendor distributes a temporary key to the customer, which allows access to
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`one or more software products for a predefined trial interval. Id. at 10:7-11.
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`The temporary key is created from an algorithm that utilizes encryption to
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`combine the real key with a customer number, the machine identification
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`number, and other predefined clear text. Id. at 14:10-14. Thus, the
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`temporary keys are only effective for a single machine. Id. at 14:14-17.
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`Upon purchase of the software, the vendor distributes a permanent key to the
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`customer to allow ordinary and unrestricted access to the software products.
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`Id. at 10:29-33.
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`2. Analysis
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`The evidence set forth by Petitioner does not indicate a reasonable
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`likelihood that Petitioner will prevail in showing that claim 15 is
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`unpatentable under 35 U.S.C. § 102(e) as anticipated by Cooper. Pet. 28-44.
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`Petitioner contends, inter alia, that Cooper discloses “a plurality of
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`containers” and “a plurality of registers, the plurality of registers forming
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`part of the container.” Id. at 30-43. Petitioner specifically argues that
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`Cooper’s computer software products describe the claimed “plurality of
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`containers.” Id. at 30 (citing Ex. 1003, 9:46-48). Petitioner further argues
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`that the ʼ536 patent describes a “container” to include its own executable
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`code for governing the interactions of the container and Cooper’s file
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`management program describes this code. Id. at 30-31 (citing Ex. 1001, 9:9-
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`12; Ex. 1003, 8:22-38).
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`Claim 15 further recites an “acquire register for controlling whether
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`the container adds a register from other containers or adds a container from
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`other containers when interacting with them.” Petitioner argues that Cooper
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`discloses a decryption key, called a “real key,” that is used to determine
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`whether encrypted software files can be decrypted and used. Id. at 40-43
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`(citing Ex. 1003, 16:9-46; 18:10-43). Petitioner argues that this “real key”
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`describes the claimed “acquire register,” because the “real key” is used to
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`“control whether the container (e.g., the file management program) will add
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`a container (e.g., a software product file) from other containers (e.g., the
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`group of software product files on disk) when the file management program
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`is interacting with them.” Id.
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`Patent Owner argues that Petitioner’s argument fails to establish that
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`the “real key” disclosed in Cooper is a “register” in either the encrypted
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`product or file management program. Prelim. Resp. 26. Patent Owner
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`further argues that “[e]ven assuming, arguendo, that the file manager
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`controls access to the encrypted software under the control of the acquire
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`register, the Petition has not supplied proof that this involves ‘adding’ the
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`new-decrypted software to the file management product.” Id. at 26-27.
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`We agree with Patent Owner. Although Petitioner argues that
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`Cooper’s “real key” is the claimed “acquire register,” Cooper is silent as to
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`whether the “real key” is a “register,” much less an “acquire register,”
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`associated with the “file management program” container within the
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`meaning of claim 15. Cooper discloses that the “real key” is used to encrypt
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`software and is used in combination with other values to decrypt software.
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`Ex. 1003, 8:58-61, 14:10-14. Cooper, however, is silent as to which
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`“container” includes the “real key” as a “register.” Although Cooper
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`discloses that the “real key” is used for encryption/decryption, we are
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`unpersuaded that the “real key” controls adding a “container” or “register” to
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`the file management program. Furthermore, we are not persuaded that once
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`the “real key” is used to decrypt software, the decrypted software, as a
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`“register” or “container,” is added to the file management program.
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`In light of these deficiencies, we are not persuaded that Petitioner has
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`established a reasonable likelihood that Petitioner would prevail in showing
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`that claim 15 is anticipated by Cooper.
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`D. Claim 16 – Obvious over Cooper, Fortune, and Veditz
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`Petitioner contends that claim 16 is unpatentable under 35 U.S.C.
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`§ 103(a) as obvious over Cooper, Fortune, and Veditz. Pet. 44-51. In
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`support of this asserted ground of unpatentability, Petitioner argues that
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`Cooper discloses an “acquire register,” as recited by claim 16, for the same
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`reasons discussed above in the asserted ground of the anticipation of
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`claim 15 by Cooper. We are not persuaded by this argument in this asserted
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`ground for the same reasons discussed above. Accordingly, we determine
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`that Petitioner has not shown a reasonable likelihood that Petitioner will
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`prevail in showing that claim 16 of the ’536 patent would have been obvious
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`over Cooper, Fortune, and Veditz.
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`III. CONCLUSION
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`For the foregoing reasons, we determine that the information
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`presented in the Petition does not establish that there is a reasonable
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`likelihood that Petitioner would prevail in establishing unpatentability of
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`claims 15 and 16 of the ’536 patent. Accordingly, we decline to institute an
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`inter partes review of the ʼ536 patent.
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`Accordingly, it is
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`IV. ORDER
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`ORDERED that pursuant to 35 U.S.C. § 314, an inter partes review is
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`hereby denied as to all grounds raised in the Petition for the reasons stated
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`above.
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`For PETITIONER:
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`Heidi Keefe
`hkeefe@cooley.com
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`For PATENT OWNER:
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`Anthony J. Patek
`Anthony@gutridesafier.com
`
`Seth Safier
`seth@gutridesafier.com
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