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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`________________
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`MASTERCARD INTERNATIONAL INCORPORATED
`Petitioner
`
`v.
`
`D’AGOSTINO, JOHN
`Patent Owner
`
`________________
`
`
`Case IPR2014-00543 (Patent 8,036,988)
`Case IPR2014-00544 (Patent 7,840,486)
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`________________
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`PATENT OWNER’S BRIEF ON REMAND
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`Patent Owner’s Updated List of Exhibits IPR2014-00543, IPR2014-00544
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`Exhibit 2001: File History for U.S. Patent No. 6,636,833 (Flitcroft)
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`Exhibit 2002: CRU Statement (Reexamination No. 90/012,517)
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`Exhibit 2003: Appeal Brief (Reexamination No. 90/012,517)
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`Exhibit 2004: U.S. Patent No. 5,621,201
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`Exhibit 2005: Excerpts from Oxford Dictionary, Eighth Edition
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`Exhibit 2006: Excerpts from Random House Webster’s College
`Dictionary
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`Exhibit 2007: Declaration of Edward L. Gussin
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`Exhibit 2008: Supplemental Declaration of Edward L. Gussin
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`Exhibit 2009: Service of Supplemental Declaration of Edward L. Gussin
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`Exhibit 2010: Patent Owner’s Demonstratives for Oral Hearing
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`Exhibit 2011: Federal Circuit Briefing on Appeal
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`1.
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`TABLE OF CONTENTS
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`Introduction ............................................................................................. 1
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`2. Argument ................................................................................................ 3
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`
`A. The Single Merchant Claims are not anticipated by Cohen under
`the Federal Circuit’s Claim Construction .......................................... 3
`
`(1) Cohen’s single-use credit card does not satisfy the Single
`Merchant Claims .......................................................................... 6
`
`(2) Patent Owner did not waive the argument that Cohen’s single-
`use card does not satisfy the Single Merchant Claims ................. 7
`
`
`
`
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`(3) The Single Merchant Claims are not anticipated by Cohen’s
`merchant type, types of stores, types of charges, nor a certain
`store use restrictions ...................................................................... 8
`
`B. The One or More Merchant Claims are not anticipated by
`Cohen ............................................................................................... 11
`
`(1) The Court’s decision requires correcting the claim
`construction of the “one or more merchants limitation” ............ 11
`
`(2) The One or More Merchants Claims are not anticipated
`by Cohen’s “chain of stores” use restriction .............................. 12
`
`(3) The One or More Merchants Claims are not anticipated
`by Cohen’s “group of stores” nor “types of stores” use
`restrictions ................................................................................... 13
`
`
`3. Conclusion ............................................................................................ 15
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`
`
`
`
`
`i
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`
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`IPR2014-00543, IPR2014-00544
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`1. Introduction
`
`
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`The Board, after fully considering Cohen and the parties’ arguments, found
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`it necessary to address only the “chain of stores” use restriction in the Final Written
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`Decisions (FWDs). The Board found the “chain of stores” use restriction satisfied
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`the claims based upon a claim construction that allowed identifying a chain store
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`when the transaction code is requested. On appeal, the Federal Circuit found this
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`claim construction, which allows for merchant pre-identification, was
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`unreasonable. D’Agostino v. MasterCard Int’l Inc., 844 F.3d 945, 950 (Fed. Cir.
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`2016). The claim construction was unreasonable because it impermissibly
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`separated the connection between the “single merchant” and the “particular
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`merchant,” thereby allowing the claim to be incorrectly satisfied by use restrictions
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`that include merchant pre-identification. Id.
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`
`
` The Court’s reasoning in rejecting the claim construction of the “single
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`merchant limitation” requires the Board to now revise the claim construction of the
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`“one or more merchants limitation.” Under the correct claim construction, the
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`“chain of stores” use restriction cannot satisfy the “one or more merchants
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`limitation” because identifying the chain store when requesting the transaction
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`code does not withhold the identity of the particular merchant.
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`
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`
`1
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`IPR2014-00543, IPR2014-00544
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`
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`Petitioner offers no argument supporting the “chain of stores” or similar use
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`restrictions (i.e., types of stores or types of charges) satisfying the “one or more
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`merchants limitation” under the correct claim construction. The reason for this is
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`quite simple, Petitioner’s original arguments are based upon a flawed claim
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`construction that incorrectly separates the “particular merchant” from the “one or
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`more merchants.” Indeed, Petitioner urges the Board to leave the original claim
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`construction of the “one or more merchants limitation” intact because without this
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`claim construction none of Cohen’s use restrictions meet the claim requirements.
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`
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`Under the correct claim construction, Petitioner’s original arguments, which
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`stand entirely upon that impermissible separation, simply fall short of meeting
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`Petitioner’s burden. And the Board cannot jump in and bail Petitioner out by
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`supplanting Petitioner’s arguments with its own. In re Magnum Oil Tools Int’l,
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`Ltd., 829 F.3d 1364, 1380-81 (Fed. Cir. 2016).
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`
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`For the reasons that follow, under the Federal Circuit’s decision, Cohen does
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`not anticipate any of the independent claims of U.S. Patent Number 8,036,988
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`(“the ‘988 Patent”) and U.S. Patent Number 7,840,486 (“the ‘486 Patent”).
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`Accordingly, the Board is requested to issue new Final Written Decisions that
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`confirm the patentability of the ‘988 Patent and the ‘486 Patent.
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`
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`
`
`2
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`IPR2014-00543, IPR2014-00544
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`2. Argument
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`A. The Single Merchant Claims are not anticipated by Cohen under the
`Federal Circuit’s Claim Construction.
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`
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`Cohen does not anticipate claims 21, 23-25 and 27-30 of the ‘988 Patent nor
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`claims 1-15 and 22-30 of the ‘486 Patent (“the Single Merchant Claims”).
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`
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`On appeal, the Court identified claim 21, step (b) of the ‘988 Patent as
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`representative of the “single merchant limitation,” which recites: “receiving a
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`request from said account holder for a transaction code to make a purchase within a
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`payment category that at least limits transactions to a single merchant, said single
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`merchant limitation being included in said payment category prior to any particular
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`merchant being identified as said single merchant.” D’Agostino, 844 F.3d at 948.
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`
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`The Court explained the claim requires a separation in time between limiting
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`the number of authorized merchants and identifying an authorized merchant:
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`The single-merchant limitation clearly requires a separation in time
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`between the communication of one piece of information and the
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`communication of another. The authorizing entity, in being asked for a
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`transaction code, is told that the number of merchants to be covered by
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`that code is one (no more, no less): a “payment category that at least
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`limits transactions to a single merchant” is communicated to the
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`authorizing entity. Critically, though, the “single merchant” must not
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`be identified to the authorizing entity at that time: “said single merchant
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`limitation being included in said payment category prior to any
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`particular merchant being identified as said single merchant.” Only
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`3
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`
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`IPR2014-00543, IPR2014-00544
`
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`later is the “particular merchant” identified, and the “particular
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`merchant” is identified “as said single merchant.”
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`Id. at 949.
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`The Court then construed the “single merchant limitation” as follows:
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`The single-merchant limitation thus requires, simply, that when the
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`transaction code is requested, the request limits the number of
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`authorized merchants to one but does not identify the merchant, such
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`identification occurring only later.
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`Id. at 950.
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`
`
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`The Court explained the claim does not allow separating the connection
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`between the “single merchant” and the “particular merchant”: “But, as we have
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`discussed, the claim language of the single-merchant limitation does not allow that
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`separation. Indeed, the second clause speaks expressly of ‘any particular merchant
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`being identified as said single merchant.’” Id. (emphasis original).
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`
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`The Court turned to the prosecution history to reinforce the understanding
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`that the “single merchant limitation” is a numerical limit on the number of
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`authorized merchants, not an identity limitation: “The prosecution history
`
`reinforces the evident meaning of the single-merchant limitation as requiring
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`limiting, to one, the number of merchants that may use the transaction code,
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`without identifying the merchant.” Id. at 949.
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`4
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`IPR2014-00543, IPR2014-00544
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`
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`The Court also turned to the reexamination of the ‘988 Patent to reinforce
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`the understanding that the “single merchant limitation” is a numerical limit on the
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`number of authorized merchants, not an identity limitation:
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`[L]imiting to a particular store or chain of stores is not the same as
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`limiting to a single merchant. A particular store or chain of stores
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`limitation is an identity limitation whereas a single merchant limitation
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`is a numerical limitation. That is, the only way a particular store or chain
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`or stores limitation can be made is by identifying that store or chain of
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`stores from other stores or chain of stores. Conversely, a single merchant
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`limitation is not related to the particular identity of any store or chain of
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`stores, rather it is a numerical limitation that limits use to only one
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`merchant. Stated differently, a particular store or chain of stores
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`limitation is limited to only the identified store or chain of stores,
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`whereas a single merchant limitation is not limited by way of identity.
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`Id. (quoting the ‘988 Patent reexamination).
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`
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`Then, under the Court’s construction, the Court found that Cohen’s
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`“chain of stores” use restriction does not satisfy the “single merchant limitation.”
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`Id. at 950. The Court instructs the “chain of stores” use restriction does not satisfy
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`the claim requirement because the use restriction includes pre-identification of a
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`merchant, which falls outside the scope of the claim. Id. In other words, a use
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`restriction that pre-identifies a merchant either singularly or as a group of
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`merchants does not meet the claims. Id. Accordingly, the Board having already
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`fully considered Cohen’s other use restrictions, all that remains on remand is for
`
`5
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`
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`the Board is to issue new FWDs that confirm the patentability of the Single
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`IPR2014-00543, IPR2014-00544
`
`
`Merchant Claims.
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`
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`Even though the Board has already considered Cohen’s other use restrictions
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`and found it necessary to address only the “chain of stores” restriction, Petitioner,
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`on remand, asserts that Cohen’s “single-use” card and Cohen’s type of stores/type
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`of charge use restriction meets the Single Merchant Claims. But neither of these
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`use restrictions meet the Single Merchant Claims, as Patent Owner has already
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`successfully argued in these proceedings. The following discussion reiterates why
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`neither of these use restrictions anticipate the Single Merchant Claims.
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`(1) Cohen’s single-use credit card does not satisfy the Single Merchant Claims.
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`
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`Each of the Single Merchant Claims include making more than one
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`transaction/purchase. Claim 21, step (b) of the ‘988 Patent is representative and
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`expressly includes making multiple transactions using the transaction code:
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`“receiving a request from said account holder for a transaction code to make a
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`purchase within the payment category that at least limits transactions to a single
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`merchant.” (emphasis added). Transactions being plural, not singular.
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`
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`
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`Independent claims 1, 24, 25, and 29 of the ‘486 Patent also include making
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`more than one purchase/transaction: “limiting purchases to a single merchant”
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`(‘486 Patent, Claim 1); “payment categories which limit a nature of subsequent
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`purchases” and “limiting purchases to a single merchant” (‘486 Patent, Claim 24);
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`6
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`IPR2014-00543, IPR2014-00544
`
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`“limits a nature, of a series of subsequent purchases” (‘486 Patent, Claim 25); and
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`“limits a nature of a subsequent purchase” (‘486 Patent, Claim 29). Each of these
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`claim recitations expressly include making more than one purchase with the
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`transaction code.
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`
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`But Cohen’s single-use card can only be used once as explained by
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`Petitioner’s expert: “Each of these single use cards has unique card number that is
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`different from the master credit card account number. That way, if the card number
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`and accompanying info is subsequently stolen, that card number cannot be used for
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`a second purchase.” Grimes Dec., IPR2014-00543, Ex. 1008, ¶ 13.
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`
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` Accordingly, since Cohen’s single-use card can only be used once, it does
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`not satisfy the Single Merchant Claims, which allow for multiple
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`transactions/purchases. These arguments were previously made by Patent Owner.
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`See IPR2014-00543, Paper 16, at 24-25; IPR2014-00544, Paper 11, at 19-20.
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`(2) Patent Owner did not waive the argument that Cohen’s single-use card does
`not satisfy the Single Merchant Claims.
`
`
`
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`Contrary to Petitioner’s argument, there is no waiver because Cohen’s
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`single-use card was not used to invalidate any claim and, thus, was not within the
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`scope of the FWDs. See Designing Health, Inc. v. Collett, 236 F.3d 1342, 1348
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`(Fed. Cir. 2001) (stating since “the trial court had not addressed the contested issue
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`and, therefore, the issue was not deemed within the scope of the judgment initially
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`appealed”).
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`7
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`IPR2014-00543, IPR2014-00544
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`
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`Second, even if Cohen’s single-use card was within the scope of the FWDs
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`(which it was not), Patent Owner’s argument is not waived because the Court
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`remanded to the Board for further consideration not inconsistent with the Court’s
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`decision. See Engel Industries, Inc. v. The Lockformer Co., 166 F.3d 1379, 1383
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`(Fed. Cir. 1999) (“Unless remanded by this court, all issues within the scope of the
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`appealed judgment are deemed incorporated within the mandate and thus are
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`precluded from further adjudication.” (emphasis added)).
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`
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`Finally, even though there was no requirement on appeal for Patent Owner
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`to raise his argument that Cohen’s single-use card does not satisfy the Single
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`Merchant Claims, this argument was in fact raised by Patent Owner on appeal. See
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`Ex. 2011 at 228-229, fn. 4.
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`(3) The Single Merchant Claims are not anticipated by Cohen’s merchant type,
`types of stores, types of charges, nor a certain store use restrictions.
`
`
`
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`Cohen’s merchant type, types of charges, and types of stores (i.e., clothing
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`stores or any computer store) use restrictions do not anticipate the Single Merchant
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`Claims for two independent reasons. First, these restrictions, by their nature, do not
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`limit use to a single merchant. See Gussin Dec., IPR2014-00543, Ex. 2007, ¶34,
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`IPR2014-00544, Ex. 2007, ¶38. They are merely a restriction on the type of
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`goods/services that the credit card can be used to purchase. Id. A card having these
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`use restrictions can be used to make purchases from more than one merchant so
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`long as the purchases do not violate the predefined merchant type, type of charge,
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`8
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`
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`IPR2014-00543, IPR2014-00544
`
`
`or type of store (i.e., “any computer store”). Thus, because these types of use
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`restrictions do not restrict use to only one merchant, as required by the claims, they
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`do not anticipate the Single Merchant Claims.
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`
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`Second, merchant type, types of charges, and types of stores use restrictions
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`do not meet the Single Merchant Claims because they are identity restrictions (i.e.,
`
`each pre-identifies a group of merchants). See Gussin Dec., IPR2014-00543, Ex.
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`2007, ¶34-37, IPR2014-00544, Ex. 2007, ¶27-30. For example, restricting use to
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`“any computer store” pre-identifies a group of merchants that are identified as
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`computer stores. These types of restrictions were distinguished during prosecution
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`because the Single Merchant Claims function as a numerical limit on the number
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`of authorized merchants. D’Agostino, 844 F.3d at 949 (“The prosecution history
`
`reinforces the evident meaning of the single-merchant limitation as requiring
`
`limiting, to one, the number of merchants that may use the transaction code,
`
`without identifying the merchant.”).
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`
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`The Court further emphasized the prosecution history distinguished the
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`claims from use restrictions including merchant pre-identification:
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`[C]omparing merchant information transmitted in an authorization
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`request against vendor data stored in an approved vendor list and
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`determining if a particular vendor is on an approved vendor list does
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`not teach a single merchant limitation being included in a payment
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`9
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`
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`IPR2014-00543, IPR2014-00544
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`category prior to any particular merchant being identified as said
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`single merchant.
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`Id.
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`
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`Consistent with the Court’s decision, merchant type, types of charges, and
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`types of stores use restrictions necessarily include comparing merchant information
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`transmitted with an authorization request against vendor data (i.e., merchant
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`category codes) to determine whether the purchase is authorized (i.e., to determine
`
`if the vendor is a computer store).
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`
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`Finally, Cohen’s certain store use restriction requires identifying the certain
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`store at the time of requesting the transaction code, which does not withhold the
`
`identity of the particular merchant and, thus, does not meet the claim requirement.
`
`
`
`Thus, since merchant type, types of charges, and types of stores use
`
`restrictions function by way of identification, and not as a numerical limit on the
`
`number of authorized merchants, as required by the claims, these use restrictions
`
`do not anticipate the Single Merchant Claims. These arguments were previously
`
`made in Patent Owner’s Response. See IPR2014-00543, Paper 16 at 23-30;
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`IPR2014-00544, Paper 11 at 18-24.
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`
`
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`10
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`
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`IPR2014-00543, IPR2014-00544
`
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`B. The One or More Merchant Claims are not anticipated by Cohen.
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`(1) The Court’s decision requires correcting the claim construction of the “one
`or more merchants limitation.”
`
`
`
`
`On remand, the claim construction of the “one or more merchants
`
`limitation” must be revised to be consistent with the Court’s decision. Claim 1,
`
`step (c) of the ‘988 Patent is representative of the “one or more merchants
`
`limitation,” which recites: “defining at least one payment category to include at
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`least limiting a number of transactions to one or more merchants, said one or more
`
`merchants limitation being included in said payment category prior to any
`
`particular merchant being identified as one of said one or more merchants.”
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`(emphasis added). IPR2014-00543, Ex. 1001, 8:65-9:3.
`
`
`
`The current construction of the “one or more merchants limitation” is
`
`inconsistent with the Court’s decision and requires correcting because it has the
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`same problem the Court identified with the “single merchant limitation”
`
`construction. Particularly, the current construction is unreasonable because it
`
`allows for merchant pre-identification by incorrectly disconnecting the “particular
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`merchant” from the “one or more merchants.” See D’Agostino, 844 F.3d at 950.
`
`Similar to the “single merchant limitation,” the second clause of the “one or more
`
`merchants limitation” expressly requires “any particular merchant being identified
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`as one of said one or more merchants.” IPR2014-00543, Ex. 1001, 9:1-3.
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`11
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`
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`IPR2014-00543, IPR2014-00544
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`
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`Accordingly, consistent with the Court’s decision, the “one or more
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`merchants limitation” should be construed to require: when the transaction code is
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`requested, the requests limits the number of authorized merchants to one or more
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`merchants but does not then identify any of the one or more merchants, such
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`identification occurring only later. And the one or more merchants meaning one
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`merchant up to a plurality of merchants, where the number of merchants is a finite
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`number. See IPR2014-00543, Paper 8, Decision at 8.
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`
`
`Under this correct claim construction, none of Cohen’s use restrictions
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`anticipate claims 1-10, 15-20, 22, 31-33, and 35-38 of the ‘988 Patent (“One or
`
`More Merchant Claims”).
`
`(2) The One or More Merchants Claims are not anticipated by Cohen’s “chain
`of stores” use restriction.
`
`Under the correct claim construction, Cohen’s “chain of stores” use
`
`
`
`
`restriction does not meet the requirements of the claim. Specifically, creating a
`
`card with a use restriction to a particular “chain of stores” requires communicating
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`to the authorizing entity the name of the chain of stores. See Gussin Dec.,
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`IPR2014-00543, Ex. 2007, ¶ 52; IPR2014-00543, Paper 16 at 38. But telling an
`
`authorizing entity to limit transactions to that particular chain of stores (e.g.,
`
`Target) is not withholding the identity of the particular merchant and, thus, is
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`“outside the second clause of the claim limitation.” D’Agostino, 844 F.3d at 950.
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`12
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`
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`IPR2014-00543, IPR2014-00544
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`
`
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`Accordingly, since the “chain of stores” use restriction does not meet the
`
`claim requirement and, the Board having already fully considered Cohen’s other
`
`use restrictions, all that remains on remand is for the Board to issue new FWDs
`
`that confirm the patentability of the One or More Merchant Claims.
`
`
`
`Yet, on remand, even though the Board has already considered Cohen’s
`
`other use restrictions, Petitioner continues to assert that Cohen’s “type of stores”
`
`and “group of stores” use restrictions satisfy the One or More Merchants Claims.
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`But Petitioner’s arguments are based upon an unreasonable claim construction that
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`has been rejected by the Federal Circuit. And Petitioner offers no justification for
`
`finding the One or More Merchant Claims unpatentable under the correct claim
`
`construction.
`
`(3) The One or More Merchants Claims are not anticipated by Cohen’s “group
`of stores” nor “types of stores” use restrictions.
`
`
`
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`Initially, as discussed above, with respect to the Single Merchant Claims,
`
`these types of use restrictions are not restrictions on the number of authorized
`
`merchants as required by the claims. Rather these are identity restrictions that
`
`include merchant pre-identification. And use restrictions that include merchant pre-
`
`identification do not meet the requirement of the claims. See §2A(3), supra; See
`
`D’Agostino, 844 F.3d at 949.
`
`
`
`Indeed, it simply is not possible to create a use restriction to a group of
`
`stores without identifying the stores that form the group. IPR2014-00543, Ex.
`
`13
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`
`
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`IPR2014-00543, IPR2014-00544
`
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`2007, ¶ 53. And limiting a credit card’s use to a group of stores requires that group
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`to already exist, otherwise it could not be identified so that the authorizing entity
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`can create the limit and restrict purchases to that group. Id.
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`
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`Next, Cohen’s “types of stores” use restriction does not satisfy the “one or
`
`more merchants limitation” for at least two reasons. First, a “types of stores” use
`
`restrictions necessarily includes comparing merchant information transmitted with
`
`an authorization request against vendor data to determine whether the purchase is
`
`authorized (i.e., to determine if the vendor is a computer store). Since this use
`
`restriction functions by way of identification, and not as a numerical limit on the
`
`number of authorized merchants, as required by the claims, it does not meet the
`
`claim requirements. See §2A(3), supra; See D’Agostino, 844 F.3d at 949.
`
`
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`Second, restricting use to types of stores (i.e., clothing stores or computer
`
`hardware and software stores) does not meet the claim requirements because such
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`a restriction is not a reasonable limit on the number of authorized merchants within
`
`the meaning of “one or more merchants.” IPR2014-00543, Ex. 2007, ¶ 51.
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`Specifically, “one or more merchants” means “one merchant up to a plurality of
`
`merchants, where the number of merchants is a finite number.” IPR2014-00543,
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`Paper 8, Decision at 8. And the steps of the claims imply that the finite number
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`must be a reasonable number of merchants to perform a purchase and authorize
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`payment. Ex. 1014, CBM2013-00057, Paper 9 at 8-9 (PTAB March 7, 2014)
`
`14
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`
`
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`IPR2014-00543, IPR2014-00544
`
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`(stating: “[The claim] steps imply a reasonable, finite number of merchants to
`
`authorize payment and perform a purchase”).
`
`
`
`A restriction to every possible clothing store that might exist in the entire
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`world is not a reasonable, finite number of merchants to authorize payment and
`
`perform a purchase. Ex. 2007, at ¶ 51. Therefore, Cohen’s “type of store” or any
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`equivalent use restriction (i.e., “type of charge” and “type of merchant”) does not
`
`satisfy the claim requirements. These arguments were previously made in Patent
`
`Owner’s Response. See IPR2014-00543, Paper 16 at 35,36, 38, and 39.
`
`3. Conclusion
`
`
`
`For the foregoing reasons, under the Federal Circuit’s decision, Cohen does
`
`not anticipate claims 1-10, 15-25, 27-33, and 35-38 of the ‘988 Patent and claims
`
`1-15 and 22-30 of the ‘486 Patent. Musmanno does not cure the problems of
`
`Cohen and, thus, claims 11-14, 26, and 34 of the ‘988 Patent and claims 16-21 of
`
`the ‘486 Patent remain patentable. The Board is requested to issue new Final
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`Written Decisions that find all claims of the ‘988 Patent and the ‘486 Patent
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`patentable.
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`March 27, 2017
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`Respectfully Submitted,
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`By: /s/ Stephen Lewellyn
`Stephen J. Lewellyn (Reg. No. 51,942)
`Brittany J. Maxey (Reg. No. 57,621)
`Attorneys for Patent Owner
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`15
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`CERTIFICATE OF SERVICE
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`Under 37 C.F.R. §§ 42.6(e)(4) and 42.205(b), the undersigned certifies
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`that on March 27, 2017, a complete and entire copy of this Patent Owner’s Brief
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`on Remand was provided via email to the Petitioner by serving the
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`correspondence email addresses of record as follows:
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`Robert Scheinfeld, Lead Counsel
`Baker Botts LLP
`30 Rockefeller Plaza, 44th Floor
`New York, New York 10112-4498
`Service Email: robert.scheinfeld@bakerbotts.com
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`Eliot William, Back-up Counsel
`Baker Botts LLP
`1001 Page Mill Road
`Building One, Suite 200
`Palo Alto, California 94304-1007
`Service Email: eliot.williams@bakerbotts.com
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`Respectfully submitted,
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`/s/Stephen Lewellyn
`Stephen J. Lewellyn
`Reg. No. 51,942
`Attorney for Patent Owner
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