Trials@uspto.gov
`Tel: 571-272-7822
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`Paper 14
`Entered: July 1, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`FACEBOOK, INC.
`Petitioner
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`v.
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`EVOLUTIONARY INTELLIGENCE, LLC
`Patent Owner
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`
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`
`
`Before KALYAN K. DESHPANDE, TREVOR M. JEFFERSON,
`BRIAN J. McNAMARA, NEIL T. POWELL, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
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`DECISION
`Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
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`

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`Case IPR2014-00093
`Patent 7,010,536 B1
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`I.
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`INTRODUCTION
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`Facebook, Inc. (“Petitioner”) filed a request for rehearing (Paper 13 “Req.
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`Reh’g”) of the Board’s decision, dated April 28, 2014, which denied institution of
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`inter partes review of claims 15 and 16 of U.S. Patent 7,010,536 B1. Paper 12.
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`Petitioner contends that the Board should have instituted review of claim 15 as
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`anticipated by Cooper and claim 16 as obvious over Cooper, Fortune, and Veditz.
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`Req. Reh’g 2. For the reasons stated below, Petitioner’s request is denied.
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`II.
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`STANDARD OF REVIEW
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`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition, a
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`panel will review the decision for an abuse of discretion.” An abuse of discretion
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`occurs when a “decision was based on an erroneous conclusion of law or clearly
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`erroneous factual findings, or . . . a clear error of judgment.” PPG Indus. Inc. v.
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`Celanese Polymer Specialties Co. Inc., 840 F.2d 1565, 1567 (Fed. Cir. 1988)
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`(citations omitted). The request must identify, specifically, all matters the party
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`believes the Board misapprehended or overlooked. 37 C.F.R. § 42.71(d).
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`III. DISCUSSION
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`Petitioner contends that the Board misapprehended or overlooked the
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`following: the Petition established that the real key is a “register,” the Petition
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`established that the real key “forms part of” the file management program
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`“container,” the Petition established that a software product file is a “container”
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`that is “added” to the file management program “container,” and the Petition
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`established that the real key “controls” whether a software product file container is
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`added to the file management program container. Req. Reh’g 5-17.
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`A. The Petition failed to establish that the real key is a “register” and the
`real key “forms part of” the file management program “container”
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`Petitioner argues that the Board misapprehended or overlooked Petitioner’s
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`argument that the real key is a “register” and the real key “forms part of” the file
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`management program “container.” Req. Reh’g 5-8. Petitioner specifically argues
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`that the real key is a “register,” under the broadest reasonable interpretation,
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`because the real key is (1) a “value” and (2) “associated with a container.” Req.
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`Reh’g 5 (citing Decision 17). Petitioner further argues that the real key is
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`“associated with” the “file management program” in Cooper because the file
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`management program container (1) generates the real key, (2) validates the real
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`key, and (3) uses the real key. Req. Reh’g 6 (citing Ex. 1003, 16:5-8, 16:19-27,
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`16:39-46, Fig. 23). Petitioner also argues that the real key “forms part of the
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`container,” under the broadest reasonable interpretation, because the file
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`management program in Cooper (1) generates the real key, (2) validates the real
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`key, and (3) uses the real key. Req. Reh’g 7-8.
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`Petitioner’s argument that the real key is “associated with a container” and
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`“forms part of the container” because Cooper’s file management program
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`generates, validates, and uses the real key, however, was not raised until this
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`request for rehearing. Although Petitioner cites portions of Cooper that disclose
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`the generation, validation, and use of the real key, Petitioner has not directed us to
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`where this argument was presented in the Petition. Accordingly, we did not
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`misapprehend or overlook this argument because it was not previously presented.
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`Although 37 C.F.R. § 42.71(d) permits a party to file a request for rehearing, it is
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`not an opportunity to submit new arguments.
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`Furthermore, the Board determined that Petitioner had failed to establish that
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`Cooper discloses that the “real key” is “associated with” and “forms part of” the
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`file management program within the meaning of claim 15. Decision 17-18.
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`Petitioner’s argument that Cooper’s real key “forms part of the container” because
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`Cooper’s file management program generates, validates, and uses the real key still
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`fails to illustrate how the steps generating, validating, and using the real key
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`discloses that the real key “forms part of the” file management program container.
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`Petitioner has not provided any evidence or rationale that explains how the steps of
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`generating, validating, and using the real key means the real key “forms part of
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`the” file management program container. Accordingly, although this argument is
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`first raised on this request for rehearing and therefore we could not have
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`misapprehended or overlooked it, this argument is also not persuasive.
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`B. The Petition failed to establish that a software product file is a
`“container” that is “added” to the file management program
`“container”
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`Petitioner contends that the Board misapprehended Petitioner’s argument
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`when we stated that “we are not persuaded that once the ‘real key’ is used to
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`decrypt software, the decrypted software, as a ‘register’ or ‘container,’ is added to
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`the file management program.” Req. Reh’g 8-9 (citing Decision 18). Petitioner
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`states that, instead of decrypted software, it identified encrypted software as the
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`“container added to the file management program.” Req. Reh’g 9. In support of
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`this contention, Petitioner points to the following argument in the Petition:
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`When a user attempts to access an encrypted software product file, the
`file management program uses the ‘real key’ to determine whether
`access will be permitted. . . . The ‘real key’ accordingly qualifies as an
`‘acquire register’ because it is used to control whether the container
`(e.g., the file management program) will add a container (e.g., a
`software product file) from other containers (e.g., the group of
`software product files on disk) . . . .”
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`Case IPR2014-00093
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`Req. Reh’g 9 (citing Pet. 41). Petitioner further argues that the “encrypted
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`software” is “applied as an input” to the decryption engine, where the decryption
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`engine is part of the file management program (emphasis in original). Req. Reh’g
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`10-11. Petitioner argues that “[b]ecause the encrypted software product file is
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`input in to the file management program container, it is ‘added’ to that container.”
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`Req. Reh’g 11-13.
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`Petitioner’s argument that the “encrypted software,” and not the “decrypted
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`software,” is the container being added, i.e., that the “encrypted software program
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`file” is “applied as input” and therefore “added” to the file management program
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`container, was not presented in the Petition. Notwithstanding the material
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`Petitioner cites at pages 39 and 41 (quoted above) of the Petition concerning an
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`acquire register, the Petition does not argue that applying the software program file
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`as input is the same as adding that software program file to the file management
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`program container. Citing only to Cooper, Petitioner first presents this argument in
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`the Request for Rehearing. Req. Reh’g 10-11. Accordingly, we could not have
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`overlooked or misapprehended this argument because it was not previously
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`presented.
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`Additionally, we are not persuaded that a software program file container
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`“applied as input” to an engine of file management program container necessitates
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`that the one container is added to the other container. Although Petitioner argues
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`that there is no requirement of physically adding a container, in light of the Board’s
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`broadest reasonable construction of “container,” Petitioner has not provided any
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`evidence or rationale illustrating how the input of a software product file to a
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`decryption engine constitutes “adding” the input software product file to the file
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`management program “logically defined data enclosure” or container. See
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`Decision 9 (emphasis added).
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`In its Request for Rehearing, Petitioner presents the alternative argument
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`that if the “decrypted software” is considered the container being added to the file
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`management program container, Cooper discloses this limitation as well. Req.
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`Reh’g 11-13. Petitioner’s alternative argument is inconsistent with its
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`acknowledgement that the rationale in the Petition is that the “encrypted software”
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`is considered to be the container being added to the file management program
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`container. Req. Reh’g 9. Accordingly, Petitioner’s argument that the “decrypted
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`software” can be considered the container added to the file management program
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`container is a new argument and therefore we could not have misapprehended or
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`overlooked this argument.
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`Petitioner also argues “to the extent that the Board suggested that the
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`encrypted software product file and/or the file management program are not
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`‘container,’ any such suggestion would constitute clear error.” Req. Reh’g 14.
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`The Board did not make a determination that the encrypted software product file or
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`file management program are not “containers.” Accordingly, this argument is not
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`persuasive.
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`C. The Petition failed to establish that the real key “controls” whether a
`software product file container is added to the file management program
`container
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`Petitioner contends that the Board misapprehended or overlooked
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`Petitioner’s argument that Cooper discloses a real key that “controls” whether the
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`software product file is added to the file management program container. Req.
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`Reh’g 15-16. Petitioner specifically argues that Cooper discloses a “validation”
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`step is performed on the real key and that after the real key has been validated, the
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`encrypted software product file is input into the decryption engine. Id. Petitioner
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`argues that because the real key must be validated before the encrypted software
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`product file is input into the decryption engine, the real key “controls” whether the
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`software product file is added to the file management program container. Id.
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`As discussed above, Petitioner’s argument that the “encrypted software
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`program file” is “applied as input” and therefore “added” to the file management
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`program container was not presented in the Petition. Thus, Petitioner’s argument
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`that the real key “controls” whether the software product file is input to the
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`decryption engine and therefore “controls” whether the software product file is
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`input to the decryption engine is also a new argument. We could not have
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`misapprehended or overlooked this argument because it is first being raised in this
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`request for rehearing. Additionally, this argument is not persuasive for the same
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`reasons as those discussed above concerning whether the software product file is
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`added to the file management program container.
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`D. The Petition failed to establish that claim 16 is obvious over Cooper,
`Fortune, and Veditz
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`Petitioner contends that the Board erred in denying institution of inter partes
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`review of claim 16 as obvious over Cooper, Fortune, and Veditz for the same
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`reasons discussed above with respect to claim 15. Petitioner’s arguments are not
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`persuasive with respect to claim 15 and are not persuasive with respect to claim 16
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`for the same reasons.
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`IV. ORDER
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`Accordingly, it is hereby
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`ORDERED that Patent Owner’s request for rehearing is denied.
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`Case IPR2014-00093
`Patent 7,010,536 B1
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`For PETITIONER:
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`Heidi Keefe
`hkeefe@cooley.com
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`Mark Weinstein
`mweinstein@cooley.com
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`For PATENT OWNER:
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`Anthony J. Patek
`Anthony@gutridesafier.com
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`Todd Kennedy
`todd@gutridesafier.com
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