Trials@uspto.gov
`571-272-7822
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`Paper 14
`Entered: August 14, 2015
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE INC.,
`Petitioner,
`
`v.
`
`AT HOME BONDHOLDERS’ LIQUIDATING TRUST,
`Patent Owner.
`____________
`
`Case IPR2015-00658
`Patent 6,286,045 B1
`
`____________
`
`
`
`Before, KARL D. EASTHOM, JUSTIN T. ARBES, and
`MIRIAM L. QUINN Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
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`IPR2015-00658
`Patent 6,286,045 B1
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`Google, Inc. (“Petitioner”) filed a Petition to institute inter partes
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`review of claims 112, 1419, and 3442 of U.S. Patent No. 6,286,045 B1
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`(“the ’045 patent”) pursuant to 35 U.S.C. § 311319. Paper 2 (“Pet.”). At
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`Home Bondholders’ Liquidating Trust (“Patent Owner”) timely filed a
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`Preliminary Response. Paper 10 (“Prelim. Resp.”). We have jurisdiction
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`under 35 U.S.C. § 314.
`
`For the reasons that follow, we deny the Petition.
`
`I.
`
`BACKGROUND
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`A. RELATED MATTERS
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`Petitioner identifies that the patent-at-issue is the subject matter of a
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`district court case filed in the U.S. District Court for the District of Delaware
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`(Case No. 1:14-cv-00216). Pet. 60.
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`B. ASSERTED GROUNDS
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`Petitioner contends that claims 112, 1419, and 3442 (“the
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`challenged claims”) are unpatentable under 35 U.S.C. § 103 based on the
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`following specific grounds:
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`Reference[s]
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`Angles1 and Merriman2
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`
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`Basis
`
`§ 103
`
`Claims challenged
`
`16, 12, 14, 15, 1719,
`34, 35, 40
`
` 1
`
` U.S. Patent No. 5,933,811 (Exhibit 1012) (“Angles”).
`2 U.S. Patent No. 5,948,061 (Exhibit 1013) (“Merriman”).
`2
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`Basis
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`Claims challenged
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`IPR2015-00658
`Patent 6,286,045 B1
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`Reference[s]
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`
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`Angles, Merriman, and Garland3
`
`§ 103
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`Angles, Merriman, and Davis4
`
`§ 103
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`Angles, Merriman, and HTTP1.05 § 103
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`711, 16, 39
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`42
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`3638, 41
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`Wexler6 and HTTP1.0
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`§ 103
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`16, 12, 1418, 3442
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`Wexler, HTTP1.0, and Meeker7
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`§ 103
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`Wexler, HTTP1.0, and Garland
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`§ 103
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`19
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`711
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`C. THE ’045 PATENT (EX. 1001)
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`The ’045 patent is directed to a system for storing information on a
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`computer network and allowing the information to be accessed by terminals
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`connected to the computer network, either directly, or through an
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`intermediary device such as a local or proxy server. Ex. 1001, Abstract.
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`The system includes computers or web sites that store pages, which may
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`include references to banners to be displayed in conjunction with the web
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`
`
` 3
`
` Michael Garland et al., Implementing Distributed Server Groups for the
`World Wide Web, Carnegie Mellon University (Jan. 25, 1995)
`(Exhibit 1009) (“Garland”).
`4 U.S. Patent No. 5,796,952 (Exhibit 1014) (“Davis”).
`5 T. Berners-Lee et al., HTTP Working Group Internet Draft Hypertext
`Transfer ProtocolHTTP/1.0, (Feb. 19, 1996) (Exhibit 1008) (“HTTP1.0”).
`6 U.S. Patent No. 5,960,409 (Exhibit 1007) (“Wexler”).
`7 Mary Meeker, Technology: Internet/New Media The Internet Advertising
`Report, Morgan Stanley, U.S. Investment Research (Dec. 1996) (Exhibit
`1010) (“Meeker”).
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`pages on the terminal. Id. The ’045 patent also discloses a method that
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`“solves the initial problem of how to create accurate counts of banner
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`information displays on user terminals while avoiding the problems created
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`by requiring the banner information to be retransmitted across the computer
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`network each time the banner information is requested by a user or a user’s
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`terminal.” Id. at 14:3340. In one embodiment, the ’045 patent describes
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`the use of an initial banner request signal that is a general content Uniform
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`Resource Locator (“URL”) address generated by the terminal, where the
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`URL does not specify which banner is to be displayed. Id. at 17:2226. The
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`recipient of the initial banner request signal selects which banner is to be
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`displayed on the terminal, and returns a specific content URL address to the
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`terminal, using a “Status HTTP 302 Redirect signal,” indicating the address
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`of the selected banner. Id. at 17:2636. Therefore, even though the banner
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`may be cached or stored on the user’s terminal or on a proxy server, the
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`specific content URL address signal is not cached, preventing the initial
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`banner request signal from being blocked by either the terminal or the proxy
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`server. Id. at 17:4250.
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`D. ILLUSTRATIVE CLAIMS
`
`Challenged claims 1 and 34 are independent, and are reproduced
`
`below.
`
`1. A method for storing information on a primary server and one or
`more secondary servers and on computer sites connected to a computer
`network, wherein information delivered over the computer network to a
`terminal or a group of terminals may contain references to other information
`to be delivered to the terminal, comprising:
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`serving a first portion of information to a terminal, wherein said first
`portion of information contains a reference to a second portion of
`information;
`causing a first request signal to be transmitted from the terminal to a
`primary server requesting a location address for said second portion of
`information from which said second portion of information can be served to
`the terminal, wherein said first request signal includes information intended
`to prevent said first request signal from being blocked from reaching said
`primary server by either the terminal or any intermediary device located
`topologically between the terminal and the primary server as a result of
`previous caching of said first portion of information or said second portion
`of information in the terminal or said intermediary device;
`sending a location signal from the primary server to the terminal
`providing said location address of said second portion of information;
`causing a second request signal to be transmitted from the terminal
`containing said location address of said second portion of information and
`requesting said second portion of information be served to the terminal; and
`serving said second portion of information to the terminal.
`
`34. A method for enabling a web page and an associated banner to be
`served to a computer, wherein the web page contains a link or other
`reference to the banner, comprising:
`serving a web page to a computer;
`causing a banner request signal to be sent from the computer to a
`primary server requesting a banner be served to the computer, wherein said
`banner request signal includes a Uniform Resource Locator address for said
`primary server and wherein said banner request signal includes information
`intended to prevent said banner request signal from being blocked from
`being received by the primary server as a result of previous caching of the
`banner on the computer;
`determining which specified banner will be served to the computer;
`
`and
`
`sending a banner location signal from said primary server to the
`computer, wherein said banner location signal includes the Uniform
`Resource Locator address for a device on which the specific banner to be
`served to the computer is stored.
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`II. ANALYSIS
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`A. CLAIM INTERPRETATION
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`The Board interprets claims using the “broadest reasonable
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`construction in light of the specification of the patent in which [they]
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`appear[].” 37 C.F.R. § 42.100(b). We presume that claim terms have their
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`ordinary and customary meaning. See In re Translogic Tech., Inc., 504 F.3d
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`1249, 1257 (Fed. Cir. 2007) (“The ordinary and customary meaning ‘is the
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`meaning that the term would have to a person of ordinary skill in the art in
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`question.’” (citation omitted)).
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`Petitioner and Patent Owner have proposed constructions for various
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`terms. See Pet. 1216; Prelim. Resp. 1519. We do not need to construe
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`every term proposed by the parties if the construction is not helpful in our
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`determination of whether to institute trial. The scope of the claim term
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`“banner” is determinative of whether we institute certain asserted grounds.
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`Our discussion of this term follows.
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`“banner”
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`Both parties agree that “banner” means “information displayed in
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`conjunction with a web page.” Pet. 12; Prelim. Resp. 15. The parties
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`disagree, however, on whether additional explanations should be included in
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`the definition. For example, Petitioner asserts that the information “is not
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`part of the same file as the web page” (Pet. 12) while Patent Owner asserts
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`that the information “can exist separately from the web page or which can be
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`used in conjunction with many web pages” (Prelim. Resp. 15). Both parties
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`rely on different portions of the specification to support their respective
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`proposed constructions. Two issues are thus presented: (1) does the
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`specification provide an express definition of the term as alleged by
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`Petitioner; and (2) does the specification support a construction broader than
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`Petitioner argues. These issues arise because the specification states that
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`for purposes of the present invention, the term ‘banner’ is
`meant to be construed very broadly and includes any
`information displayed in conjunction with a web page
`wherein the information is not part of the same file as the
`web page. That is, a banner includes anything that is
`displayed or used in conjunction with a web page, but
`which can exist separately from the web page or which
`can be used in conjunction with many web pages.
`Banners can include graphics, textual information, video,
`audio, animation, and links to other computer sites, web
`sites, web pages, or banners.
`
`Ex. 1001, 2:2837. Patent Owner points to additional statements in the
`
`specification where the banner information may be served with the web
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`page. See Prelim. Resp. 1516 (citing Ex. 1001, 10:2326 (“banner
`
`information may be served with the webpage or, more commonly, the
`
`banner information may reside in separate files.”)).
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`We agree with the parties that the specification provides a description
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`of a “banner” as information displayed in conjunction with a web page. But
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`it is unnecessary for us to decide whether a banner may comprise
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`information that may be part of the “same file as the web page” or served
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`with the web page. The specification states the intent of construing “banner”
`
`with a stated, broad definition, and, therefore, we may not limit the
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`construction of “banner” to how it may be served or stored vis-à-vis a web
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`page. The claims provide sufficient detail regarding the location and
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`operation of the banner such that we do not need to define the term further
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`than how the information is displayed. Accordingly, under the broadest
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`reasonable interpretation in light of the specification, for purposes of this
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`Decision, we construe “banner” to mean “information displayed in
`
`conjunction with a web page.”
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`B. OBVIOUSNESS GROUNDS BASED ON ANGLES, MERRIMAN,
`GARLAND, AND DAVIS
`
`Petitioner asserts four grounds predicated on, at a minimum, the
`
`combination of Angles and Merriman.
`
`1. Overview of Angles (Ex. 1012)
`
`Angles describes a system and method for delivering customized
`
`electronic advertisements in an interactive communication system. Ex.
`
`1012, Abstract. Angles’s system interconnects multiple consumer
`
`computers, multiple content provider computers, and multiple Internet
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`provider computers with an advertisement provider computer. Id. Figure 4,
`
`reproduced below, illustrates Angles’s system, and shows the flow of
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`information among these computers. See id. at 4:61:65.
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`Figure 4 depicts content provider computer 14 that includes electronic
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`pages 32 for presenting information to the consumer. See id. at 12:5160.
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`Each electronic page 32 contains advertising insert 56 which is a place-
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`holder configured to contain customized advertisement 30 generated by
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`advertisement provider computer 18. Id. Advertising insert 56 contains
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`advertisement request 26, which references a content provider Common
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`Gateway Interface (CGI) script 64 that exists on advertisement provider
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`computer 18. Id. at 13:14. “When the advertisement provider computer 18
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`executes the content provider script 64, the advertisement provider computer
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`18 identifies which content provider computer 14 is being accessed by a
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`consumer computer 12.” Id. at 13:1619. Advertisement provider computer
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`18 sends customized advertisement 30 to consumer computer 12. Id. at
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`8:5661. Electronic page 32 and customized advertisement 30 are combined
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`into a displayable page. Id. at 8:6265.
`
`Angles further describes an embodiment in which consumer computer
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`12 includes advertising storage medium 44, which can be a compact disk
`
`drive and a compact disk, to store a variety of advertisements that can be
`
`retrieved and displayed by consumer computer 12. Id. at 11:5055. In this
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`embodiment, the advertisement command identifies a particular location on
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`advertising storage medium 44, such as the particular track and sector where
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`an advertisement is located. Id. at 11:6612:2.
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`2. Overview of Merriman (Ex. 1013)
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`Merriman describes targeting the delivery of advertisements over a
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`network, such as the Internet. Ex. 1013, Abstract. Figure 1, reproduced
`
`below, illustrates affiliate’s web site 12, advertisement (“ad”) server web
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`site 19, and advertiser’s web site 18. See id. at 2:5962.
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`In Figure 1, above, a user operates a web browser to generate
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`request 20 directed to affiliate web site 12. Id. at 3:2428. The affiliate web
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`site sends messages 22 containing the information available at the particular
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`web site 12 for the requested page to be displayed by user browser 16,
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`except for one or more advertising objects such as banner advertisements.
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`Id. at 3:3034. Instead of sending the advertising objects, affiliate web
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`server sends a link to the node running advertiser server process 19, where
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`the link refers to an inline image, such as a banner. Id. at 3:3441. User
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`browser 16 sends message 23 to advertising server process 19 to access the
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`object. Id. at 3:4152. Upon receiving message 23, advertising server
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`process 19 determines which advertisement or other object to provide to user
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`browser 16 and transmits message 24 containing the object. Id. at 3:5257.
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`The advertisement object then is displayed “as a composite of the received
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`affiliate’s web page plus the object transmitted back by the advertising web
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`server.” Id. at 3:5963. “As part of the ‘click through’ process, when the
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`user clicks on the banner or other advertising object displayed by the user’s
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`browser 16, the user’s browser again transmits a message [23] to the ad
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`server.” Id. at 3:6467. Advertising server 19 notes the address of the
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`computer that generated message 23 and transmits back the URL of the
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`advertiser’s web page so that user browser 16 can generate a message 26 to
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`contact advertiser web site 18. Id. at 3:674:5.
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`3. Overview of Garland (Ex. 1009)
`
`Garland describes an architecture and protocol for a distributed web
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`server group, as illustrated in Figure 5, reproduced below. Ex. 1009, 3.
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`Figure 5, above, illustrates a web client sending an HTTP request and
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`a dispatcher server that calculates the least-loaded server and sends the
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`forwarding address of that server. Id. at 3. The dispatcher distributes the
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`requests to balance the load placed on the member servers. Id. at 5.
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`4. Discussion
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`Petitioner contends that Angles discloses most of the limitations of
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`independent claims 1 and 34. Pet. 18–25. In particular, Petitioner contends
`
`that Angles’s advertisement request, which references a CGI script, discloses
`
`the “first request signal includ[ing] information intended to prevent said first
`
`request signal from being blocked from reaching said primary server . . . as a
`
`result of previous caching,” recited in claim 1, and the “banner request
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`signal include[ing] information intended to prevent said banner request
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`signal from being blocked from being received by the primary server as a
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`result of previous caching,” recited in claim 34. We are not persuaded that
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`Petitioner has made a sufficient showing that Angles discloses the recited
`
`signals. Although Petitioner alleges that a person of ordinary skill in the art
`
`would recognize that referencing a CGI script in the advertisement request
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`would not be blocked (Pet. 20), the Petition neither mentions nor points to
`
`evidence that Angles’s system includes a cache. See Prelim. Resp. 21
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`(arguing that Angles contains no reference whatsoever to a cache). The
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`significance of the omission is such that we are not able to determine
`
`whether Angles’s advertisement request is employed to avoid a cache where
`
`information previously was cached. Specifically, the claims require that the
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`above-identified signals include information “intended to prevent” said
`
`signal from being blocked “as a result of previous caching.” If Angles is not
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`shown or argued to disclose, teach, or suggest caching, we cannot determine
`
`that the reference to the CGI script in the advertisement request is intended
`
`to prevent blocking as a result of previous caching.
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`Accordingly, we are not persuaded that Petitioner has shown a
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`reasonable likelihood that claims 1 and 34 would have been obvious over
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`Angles and Merriman. Petitioner does not allege that any of the other
`
`references disclose, teach, or suggest the information intended to prevent
`
`blocking as a result of previous caching as recited in claims 1 and 34. Nor
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`does Petitioner allege that any other reference teaches or suggests caching
`
`such that a person of ordinary skill in the art would have found it obvious for
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`Angles to use caching and to prevent blocking as a result of previous
`
`caching. Therefore, Petitioner has failed to show a reasonable likelihood
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`that claims 212 and 1419, which depend from claim 1, and claims 3342,
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`which depend from claim 34, are unpatentable as obvious over combinations
`
`involving Angles, Merriman, Garland, and Davis. Consequently, no trial is
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`instituted on any of those grounds.
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`C. OBVIOUSNESS GROUNDS BASED ON WEXLER, HTTP1.0,
`MEEKER, AND GARLAND
`
`Petitioner asserts three grounds predicated on, at a minimum, the
`
`combination of Wexler and HTTP1.0.
`
`1. Overview of Wexler (Ex. 1007)
`
`Wexler is directed to providing on-line third party accounting and
`
`statistical information. Ex. 1007, Abstract. A third party accounting service
`
`receives download request signals intended for an advertiser Web site. Id.
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`The download request signal results from a user clicking on a banner
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`displayed on a Web page, because the banner is configured to point to the
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`third party Web site, rather than pointing to the advertiser’s Web site. Id.
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`The third party Web site maintains a count of the received download request
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`signals generated by clicking on the banner, and sends a redirect signal to
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`the user’s Web browser causing the advertiser Web site to send the
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`information originally sought by the user. Id.
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`2. Overview of HTTP1.0 (Ex. 1008)
`
`HTTP1.0 is a working document of the Hypertext Transfer Protocol
`
`(HTTP) Working Group. Ex. 1008, 1. The document describes
`
`specifications for the protocol referred to as “HTTP/1.0.” Id. In particular,
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`HTTP1.0 discloses the use of a “Pragma general-header field.” Id. at 35.
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`“All pragma directives specify optional behavior from the viewpoint of the
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`protocol; however, some systems may require that behavior be consistent
`
`with the directives.” Id. One pragma directive is a “no-cache” directive,
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`which is described as follows:
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`When the "no-cache" directive is present in a request
`message, an application should forward the request
`toward the origin server even if it has a cached copy of
`what is being requested. This allows a client to insist
`upon receiving an authoritative response to its request.
`It also allows a client to refresh a cached copy which is
`known to be corrupted or stale.
`Id. at 3536.
`
`3. Discussion
`
`Wexler describes a third party accounting and statistical service that
`
`redirects a user’s web browser to request a web page from an advertiser after
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`the user clicks on a banner. Ex. 1007, 2:38–56. Petitioner relies on
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`Wexler’s advertiser’s web page as disclosing the “second portion of
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`information” (claim 1) and “banner” (claim 34). Pet. 43. That is, although
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`Wexler discloses banner 9 displayed with web page 7, Petitioner alleges that
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`the claimed “banner” is, instead, the web page displayed after the user clicks
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`on banner 9. Id. Patent Owner has challenged this assertion as insufficient
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`to show unpatentability of claims 1 and 34.
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`According to Patent Owner, the advertiser’s web page is not a
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`“banner,” and Wexler does not disclose two requests to retrieve a banner.
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`Prelim. Resp. 40–44. This argument is not commensurate with claim 1,
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`which does not recite a “banner.” Nevertheless, with regard to claim 34, we
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`agree with Patent Owner that the two separate web pages served in Wexler
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`are not a web page and a banner within the scope of claim 34. Particularly,
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`we have construed “banner” to require, at a minimum, that the information is
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`displayed in conjunction with a web page. Notwithstanding the conclusory
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`assertion of the Kent Declaration at paragraph 158, two web pages are not
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`displayed in conjunction with each other, they are displayed separately. One
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`web page is displayed first, the advertiser’s web page is displayed
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`separately, and only after the user has clicked through the banner’s
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`advertisement. Therefore, Wexler’s advertiser’s web page is not a “banner”
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`that is displayed in conjunction with a web page. The Kent Declaration is
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`conclusory on this point, particularly on the assertion that a web page would
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`have been displayed in a frame or an iframe within another web page. See
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`Ex. 1003 ¶ 158. There is insufficient factual support for this assertion,
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`especially in light of Patent Owner’s argument (and evidence) that such
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`features were not in existence in the HTML specification until after the time
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`of the invention. See Prelim. Resp. 43 (citing Ex. 2011). Accordingly, we
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`are persuaded by Patent Owner’s argument that Petitioner’s contentions of
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`unpatentability with regard to claim 34 are insufficient to institute inter
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`partes review.
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`With regard to the combination of Wexler and HTTP1.0 (asserted in
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`connection with claims 1 and 34), we also are persuaded by Patent Owner’s
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`arguments that the evidence of a motivation to combine the references is
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`insufficient. Petitioner alleges that Wexler’s request 15a may be modified to
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`include a pragma: no-cache directive such that the request will be rendered
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`“unblockable.” Pet. 44. Using a no-cache directive in a request, according
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`to Patent Owner, however, has not been shown to be a standard feature in a
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`browser or a known technique applicable to a request made by a user when
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`clicking on a hyperlink. See Prelim. Resp. 4546. The HTTP1.0 reference
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`proffered by Petitioner is generic in its description of the pragma directives,
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`and confirms that that they specify optional behavior from the viewpoint of
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`the protocol. Ex. 1008, 35. Petitioner does not point to anything indicating
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`that Wexler implemented pragma directives or that its system requires
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`compliance with this optional protocol parameter. Furthermore, Patent
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`Owner has argued persuasively (and provided supporting evidence) that a
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`no-cache directive in Wexler’s request 15a requires explanation, because at
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`the time of the invention, it was not known for a server to cause a browser to
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`use such a directive in connection with a banner request, such as that of
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`Wexler. See Prelim. Resp. 45 (arguing that the ’045 patent does not suggest
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`including a Pragma: no-cache directive in a banner request because there
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`was no apparent way for a server to cause a browser to do so). Finally, we
`
`note that Petitioner relies expressly in the disclosure of the ’045 patent to
`
`support the argument that the Pragma no-cache directive was known to be an
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`IPR2015-00658
`Patent 6,286,045 B1
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`
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`“unblockable” signal. Pet. 44. As Patent Owner points out, though, the
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`specification of the ’045 patent references a “pragma:no-cache tag” used in
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`an HTTP 302 Redirect signal to a receiver, not in a request sent from a
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`receiver. See Ex. 1001, col. 18, ll. 14–17; Prelim. Resp. 45.
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`Accordingly, we are not persuaded that Petitioner has shown a
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`reasonable likelihood of prevailing in its contention that claims 1 and 34 are
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`unpatentable as obvious over Wexler and HTTP1.0. Petitioner does not
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`assert either Meeker or Garland as making up for the deficiencies noted
`
`above. Therefore, we determine that Petitioner has not shown a reasonable
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`likelihood of prevailing in its contention that claims 212, 1419, and 3542
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`are unpatentable over the Wexler-based grounds.
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`III. CONCLUSION
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`For the foregoing reasons, we do not institute inter partes review of
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`the ’045 patent in this proceeding.
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`IV. ORDER
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`After due consideration of the record before us, it is
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`ORDERED that the Petition is denied and no trial is instituted.
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`IPR2015-00658
`Patent 6,286,045 B1
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`PETITIONER:
`
`Michelle Holoubek (Lead Counsel)
`Michael Messinger (Back-up Counsel)
`mhoubek-PTAB@skgf.com
`mikem-PTAB@skgf.com
`Sterne, Kessler, Goldstein & Fox
`1100 New York Ave., N.W.
`Washington DC 20005
`
`PATENT OWNER:
`
`Garland Stephens (Lead Counsel)
`Justin Constant (Back-up Counsel)
`Jared Bobrow (Back-up Counsel, admitted pro hac vice)
`at.home.google@weil.com
`garland.stephens@weil.com
`justin.constant@weil.com
`Weil, Gotshal & Manges LLP
`
`
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