Trials@uspto.gov
`Tel: 571-272-7822
`
`
`IPR2015-01751, Paper 82
`IPR2015-01752, Paper 80
`Entered: December 28, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`RPX CORPORATION,
`Petitioner,
`
`v.
`
`APPLICATIONS IN INTERNET TIME, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01751
`Case IPR2015-01752
`Patent 7,356,482 B2
`____________
`
`
`
`Before LYNNE E. PETTIGREW, MITCHELL G. WEATHERLY, and
`JENNIFER MEYER CHAGNON, Administrative Patent Judges.
`
`CHAGNON, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
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`
`

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`IPR2015-01751, IPR2015-01752
`Patent 7,356,482 B2
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`I.
`
`INTRODUCTION
`We have jurisdiction to hear this inter partes review under 35 U.S.C.
`§ 6. This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a)
`and 37 C.F.R. § 42.73. For the reasons discussed herein, we determine that
`Petitioner has shown, by a preponderance of the evidence, that claims 1,
`3–8, and 10–40 of U.S. Patent No. 7,356,482 B2 (Ex. 1001,1 “the ’482
`patent”) are unpatentable.
`A. Procedural History
`RPX Corporation (“Petitioner”) filed a Petition for inter partes review
`of claims 1, 7–21, 27–41, and 47–59 of the ’482 patent. IPR2015-01751,
`Paper 1 (“1751 Pet.”). Petitioner also filed a Petition for inter partes review
`of claims 2–6, 22–26, and 42–46 of the ’482 patent. IPR2015-01752,
`Paper 1 (“1752 Pet.”). Petitioner provided a Declaration of Mark E.
`Crovella, Ph.D. (Ex. 1002) to support its positions. Applications In Internet
`Time LLC (“Patent Owner”) filed a Preliminary Response in each
`proceeding. IPR2015-01751, Paper 20, Paper 26 (redacted version)
`(“1751 Prelim. Resp.”); IPR2015-01752, Paper 20, Paper 26 (redacted
`version) (“1752 Prelim. Resp.”). We also authorized additional briefing on
`issues relating to real parties-in-interest. See IPR2015-01751, Paper 28,
`Paper 29 (redacted version) (“RPI Reply”); IPR2015-01751, Paper 38, Paper
`37 (redacted version) (“RPI Sur-Reply”) (the same documents also were
`filed in IPR2015-01752, Papers 28, 29, 37, 38).
`
`
`1 Citations to exhibits herein are to the Exhibit numbers in IPR2015-01751.
`The same Exhibits may be found in IPR2015-01752. For example, Exhibit
`1001 in IPR2015-01751 corresponds to Exhibit 1101 in IPR2015-01752.
`
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`Pursuant to 35 U.S.C. § 314(a), on February 25, 2016, we instituted
`inter partes review on the following asserted grounds:
`IPR2015-01751
`References
`
`Basis
`
`Claims Challenged
`
`Popp2
`
`§ 102
`
`1, 7, 8, 10–13, 18–21, 27–33, 38–40
`
`Popp and Anand3
`
`§ 103
`
`13–17, 33–37
`
`Kovacevic4
`
`§ 102
`
`1, 8, 10, 19–21, 28, 30, 39, 40
`
`Balderrama5 and
`Java Complete6
`
`§ 103
`
`1, 7, 8, 10–12, 19–21, 27–32, 39, 40
`
`IPR2015-01751, Paper 517 (“1751 Inst. Dec.”).
`
`IPR2015-01752
`References
`
`Popp
`
`Basis
`
`§ 102
`
`Claims Challenged
`
`22
`
`Popp and Codd8
`
`§ 103
`
`3–6, 23–26
`
`
`2 U.S. Patent No. 6,249,291 B1, issued June 19, 2001 (Ex. 1004).
`3 U.S. Patent No. 5,710,900, issued Jan. 20, 1998 (Ex. 1009).
`4 Srdjan Kovacevic, Flexible, Dynamic User Interfaces for Web-Delivered
`Training, in AVI ’96 PROCEEDINGS OF THE WORKSHOP ON ADVANCED
`VISUAL INTERFACES 108–18 (1996) (Ex. 1005).
`5 U.S. Patent No. 5,806,071, issued Sept. 8, 1998 (Ex. 1006).
`6 Java Complete!, 42 DATAMATION MAGAZINE 5, 28–49 (Mar. 1, 1996)
`(Ex. 1007).
`7 A public version of the Institution Decision is available as Paper 62.
`8 E. F. Codd, Does Your DBMS Run By the Rules?, XIX COMPUTERWORLD
`42, 49–60 (Oct. 21, 1985) (Ex. 1008).
`
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`IPR2015-01751, IPR2015-01752
`Patent 7,356,482 B2
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`
`IPR2015-01752
`References
`Balderrama and
`Java Complete
`
`Basis
`
`Claims Challenged
`
`§ 103
`
`22
`
`Balderrama, Java
`Complete, and Codd
`
`§ 103
`
`3–6, 23–26
`
`Kovacevic and Codd
`
`§ 103
`
`3–6, 23–26
`
`IPR2015-01752, Paper 519 (“1752 Inst. Dec.”).
`Subsequent to institution, Patent Owner filed a Patent Owner
`Response (IPR2015-01751, Paper 65 (“PO Resp.”)10), along with
`Declarations of H. V. Jagadish, Ph.D. (Ex. 2032) and James Flynn
`(Ex. 2033) to support its positions. Petitioner filed a Reply to the Patent
`Owner Response in each proceeding (IPR2015-01751, Paper 72 (“1751 Pet.
`Reply”); IPR2015-01752, Paper 70 (“1752 Pet. Reply”)), along with a Reply
`Declaration of Dr. Crovella (Ex. 1062). Pursuant to our authorization,
`Patent Owner filed a limited Sur-Reply (IPR2015-01751, Paper 75 (“PO
`Sur-Reply”)11). A combined oral hearing for Cases IPR2015-01750,
`IPR2015-01751, and IPR2015-01752 was held on November 8, 2016.
`A transcript of the hearing is included in the record. IPR2015-01751,
`Paper 79 (“Tr.”); IPR2015-01752, Paper 77.
`
`
`9 A public version of the Institution Decision is available as Paper 60.
`10 Patent Owner filed an identical Patent Owner Response in IPR2015-01752
`(Paper 63). For convenience, we refer to both documents as “PO Resp.”
`herein.
`11 Patent Owner filed an identical Sur-Reply in IPR2015-01752 (Paper 73).
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`B. Related Proceedings
`The ’482 patent is the subject of the following district court
`proceeding: Applications in Internet Time LLC v. Salesforce.com, Inc.,
`No. 3:13-cv-00628 (D. Nev.). 1751 Pet. 3; 1751 Paper 5, 2; 1752 Pet. 3;
`1752 Paper 5, 2.
`Claims 13–18 of related U.S. Patent No. 8,484,111 B2 are the subject
`of inter partes review in IPR2015-01750. 1751 Pet. 3; 1751 Paper 5, 2;
`1752 Pet. 3; 1752 Paper 5, 2.
`C. The ’482 Patent
`The ’482 patent, titled “Integrated Change Management Unit,” relates
`to an “integrated system for managing changes in regulatory and
`non-regulatory requirements for business activities at an industrial or
`commercial facility.” Ex. 1001, Abstract. The integrated system described
`in the ’482 patent manages data that is constantly changing by
`(1) “provid[ing] one or more databases that contain information on
`operations and requirements concerning an activity or area of business,”
`(2) “monitor[ing] and evaluat[ing] the relevance of information on
`regulatory and non-regulatory changes that affect operations of the business
`and/or information management requirements,” (3) “convert[ing] the
`relevant changes into changes in work/task lists, data entry forms, reports,
`data processing, analysis and presentation . . . of data processing and
`analysis results to selected recipients, without requiring the services of one
`or more programmers to re-program and/or re-code the software items
`affected by the change,” and (4) “implement[ing] receipt of change
`information and dissemination of data processing and analysis results using
`the facilities of a network, such as the Internet.” Id. at 8:30–46, 66–67.
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`Figure 1 of the ’482 patent is reproduced below:
`
`
`
`As shown in Figure 1, the integrated system operates at four layers:
`(1) change management layer 11 that identifies regulatory and
`non-regulatory changes that may affect a user’s business, (2) Java data
`management layer 13 that generates a user interface (“UI”), (3) metadata
`layer 15 that provides data about the user interface including “tools,
`worklists, data entry forms, reports, documents, processes, formulas, images,
`tables, views, columns, and other structures and functions,” and (4) business
`content layer 17 that is specific to the particular business operations of
`interest to the user. Id. at 9:33–48. According to the ’482 patent, because
`the system of the invention is “entirely data driven,” the need to write and
`compile new code in order to update the system is eliminated. Id. at 10:20,
`12:42–52.
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`D. Illustrative Claim
`Of the claims subject to these inter partes reviews, claims 1 and 21
`are independent. Claims 3–8 and 10–20 depend, directly or indirectly, from
`claim 1. Claims 22–40 depend, directly or indirectly, from claim 21.
`Claim 1 of the ’482 patent, reproduced below, is illustrative:
`1. A system for providing a dynamically generated
`application having one or more functions and one or more user
`interface elements, comprising:
`a server computer;
`one or more client computers connected to the server
`computer over a computer network;
`the server computer
`a first
`layer associated with
`containing information about the unique aspects of a particular
`application;
`a second layer associated with the server computer
`containing information about the user interface and functions
`common to a variety of applications, a particular application
`being generated based on the data in both the first and second
`layers;
`a third layer associated with the server computer that
`retrieves the data in the first and second layers in order to
`generate the functionality and user interface elements of the
`application; and
`a change management layer for automatically detecting
`changes that affect an application,
`each client computer further comprising a browser
`application being executed by each client computer, wherein a
`user interface and functionality for the particular application is
`distributed
`to
`the browser application and dynamically
`generated when the client computer connects to the server
`computer.
`Ex. 1001, 32:9–34.
`
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`II. ANALYSIS
`A. Real Parties-in-Interest
`In its Petitions, Petitioner identifies itself, RPX Corporation, as the
`“sole real party-in-interest in this proceeding.” 1751 Pet. 2; 1752 Pet. 2.
`Prior to institution, Patent Owner raised the issue of whether Petitioner has
`identified all real parties-in-interest. In particular, Patent Owner asserted
`that Salesforce.com, Inc. (“Salesforce”) is an unnamed real party-in-interest.
`See 1751 Prelim. Resp. 3–21; 1752 Prelim. Resp. 3–21.
`In our Institution Decisions, we determined that Salesforce had not
`been shown to be a real party-in-interest in these proceedings. See
`1751 Inst. Dec. 8–16; 1752 Inst. Dec. 8–16. In its Patent Owner Response,
`Patent Owner argues:
`In its decision instituting these . . . trials, the Board stated
`that there was insufficient evidence to find that the real party in
`interest is Salesforce.com, Inc. Patent Owner disagrees with
`the Board’s view of the law and the facts, and in particular
`believes that the Board misconstrued the law. As explained
`previously, the AIA was intended to prevent defendants from
`getting “a second bite at the apple.” Yet, the Board is doing
`just that by allowing Petitioner to act indirectly for Salesforce.
`In its decision, the Board set an improperly high burden of
`proof for the patent owner, and also improperly shifted the
`burden of proof to the patent owner. As explained in Patent
`Owner’s Preliminary Response, Salesforce is the real party in
`interest and Petitioner is acting as its proxy. Because
`Salesforce is time limited, so is Petitioner and patentability
`should be confirmed on this basis.
`PO Resp. 8. To the extent Patent Owner is attempting to incorporate
`arguments made in the Preliminary Response into the Patent Owner
`Response, such incorporation is improper under our rules. See 37 C.F.R.
`§ 42.6(a)(3) (“Arguments must not be incorporated by reference from one
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`document into another document.”). In any event, Patent Owner has neither
`presented any new evidence into the record, beyond the evidence we
`considered previously in rendering our Institution Decisions, nor cited any
`legal authority to support its positions set forth above. Based on the
`complete record now before us, we see no reason to change our previous
`determination, and we are not persuaded that Salesforce should have been
`identified as a real party-in-interest in these proceedings.
`B. Level of Ordinary Skill in the Art
`Petitioner asserts that a “person of ordinary skill in the art in the
`timeframe of the December 1998 priority date of the ’482 patent . . . would
`have had at least a B.S. in Computer Science or the equivalent, along with at
`least two years of computer programming experience in developing
`applications for client-server systems.” 1751 Pet. 6 (citing Ex. 1002 ¶ 10);
`1752 Pet. 6 (citing the same evidence). Patent Owner indicates that it “does
`not dispute Petitioner’s definition of the person of ordinary skill in the art.”
`PO Resp. 10; Ex. 2032 ¶ 18; Ex. 2033 ¶ 17. For purposes of this Final
`Written Decision, we agree with and adopt Petitioner’s proposed definition
`for the level of ordinary skill in the art, which each declarant in this
`proceeding meets or exceeds.12 See Ex. 1002 ¶¶ 2–6, 11; Ex. 2032 ¶¶ 4–9,
`19; Ex. 2033 ¶¶ 2–5, 18. We further note that the applied prior art reflects
`
`
`12 Patent Owner argues that, in the relevant time frame, Dr. Crovella “was
`already considerably more than ordinary,” and, for this reason, we should
`give less weight to Dr. Crovella’s testimony. PO Resp. 11; see also
`Tr. 53:4–9, 55:24–56:4. We disagree. See Sundance, Inc. v. DeMonte
`Fabricating Ltd., 550 F.3d 1356, 1363–64 (Fed. Cir. 2008) (noting that
`under Fed. R. Evid. 702, the expert must possess sufficient “expertise to be
`of assistance” to the trier of fact).
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`the appropriate level of skill at the time of the claimed invention. See
`Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001).
`C. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed
`Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (upholding the use of
`the broadest reasonable interpretation standard). Pursuant to that standard,
`the claim language should be read in light of the specification, as it would be
`interpreted by one of ordinary skill in the art. In re Suitco Surface, Inc.,
`603 F.3d 1255, 1260 (Fed. Cir. 2010). Thus, we generally give claim terms
`their ordinary and customary meaning. See In re Translogic Tech., Inc.,
`504 F.3d 1249, 1257 (Fed. Cir. 2007) (“The ordinary and customary
`meaning ‘is the meaning that the term would have to a person of ordinary
`skill in the art in question.’” (quoting Phillips v. AWH Corp., 415 F.3d 1303,
`1313 (Fed. Cir. 2005) (en banc))).
`The claims, however, “should always be read in light of the
`specification and teachings in the underlying patent,” and “[e]ven under the
`broadest reasonable interpretation, the Board’s construction ‘cannot be
`divorced from the specification and the record evidence.’” Microsoft Corp.
`v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015) (citations omitted).
`In other words, “[u]nder a broadest reasonable interpretation, words of the
`claim must be given their plain meaning, unless such meaning is inconsistent
`with the specification and prosecution history.” Trivascular, Inc. v.
`Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016) (citing Straight Path IP
`Grp., Inc. v. Sipnet EU S.R.O., 806 F.3d 1356, 1362 (Fed. Cir. 2015)). Any
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`special definition for a claim term must be set forth in the specification with
`reasonable clarity, deliberateness, and precision. See In re Paulsen, 30 F.3d
`1475, 1480 (Fed. Cir. 1994). However, limitations are not to be read from
`the specification into the claims. In re Van Geuns, 988 F.2d 1181, 1184
`(Fed. Cir. 1993).
`The parties’ dispute requires construction of the phrases “change
`management layer for automatically detecting changes that affect an
`application,” recited in claim 1, and “automatically detecting changes that
`affect a particular application,” recited in claim 21. No issue in this
`Decision requires express construction of any other claim terms. See, e.g.,
`Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011)
`(“[C]laim terms need only be construed ‘to the extent necessary to resolve
`the controversy.’”) (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc.,
`200 F.3d 795, 803 (Fed. Cir. 1999)).
`1. change management layer . . .
`Claim 1 recites, in part, “a change management layer for
`automatically detecting changes that affect an application.” Ex. 1001,
`32:27–28. In the Petitions, Petitioner argues that “‘[c]hange management’
`would have been understood by a [person of ordinary skill in the art] to be a
`mere label for the layer that performs the function recited in the claim, and
`thus the [broadest reasonable interpretation] for ‘change management layer
`for automatically detecting changes that affect an application’ is ‘a layer for
`automatically detecting changes that affect an application.’” 1751 Pet. 10
`(citing Ex. 1002 ¶ 23); see 1752 Pet. 10 (citing the same evidence).
`In its Patent Owner Response, Patent Owner argues that “the term
`‘change management layer’ when interpreted in view of the specification
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`would readily be understood to a person of ordinary skill in the art to mean
`‘a layer that automatically detects changes external to the application
`program which impact how the application program should operate.’”
`PO Resp. 14 (citing Ex. 2032 ¶ 27; Ex. 2033 ¶ 27) (emphases added); see id.
`at 18. Patent Owner argues, in comparison, that “detecting changes internal
`to an application program is precisely what the claimed ‘third layer’ does.”13
`Id. at 14 (citing Ex. 2032 ¶¶ 34–36).
`As can be seen by a comparison of Patent Owner’s proposed
`construction with the language of claim 1, Patent Owner’s construction adds
`an additional requirement to the express language of the claim that any
`detected changes are “external to the application program.” Pointing to
`discussion in the ’482 patent regarding so-called “intelligent agents” that
`search on the internet for relevant regulatory and/or non-regulatory changes
`in a selected business area, Patent Owner argues that “[a]ll of these
`‘changes’ shown in the ’482 patent are all ‘external to the application
`program.’” Id. at 16 (citing Ex. 1001, 16:17–34, 19:66–20:6; Ex. 2032
`¶¶ 32–34; Ex. 2033 ¶¶ 33–34). Patent Owner makes a further distinction
`that “changes that affect an application,” as claimed, are not changes
`affecting the application in any way, but must be “changes which impact
`how the application program should operate.” See Tr. 66:21–69:3; Ex. 2032
`¶ 27; Ex. 2033 ¶ 27.
`
`
`13 We note that the claimed third layer does not recite detecting any changes
`per se, but instead the claim recites that the third layer “retrieves the data in
`the first and second layers in order to generate the functionality and user
`interface elements of the application.” See Ex. 1001, 32:23–26.
`
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`Patent Owner further argues that “it would be nonsensical for
`application-internal ‘changes’ to be the ‘changes that affect the
`application.’” PO Resp. 17. According to Patent Owner,
`The specification includes an example that highlights that the
`definition proposed by the Patent Owner for the “change
`management layer” and the associated “change” are the
`broadest reasonable interpretation when read in light of the
`specification. The ’482 patent explains that regulations and
`technical requirements are constantly changing, and that these
`changes are posted
`in various media,
`including paper,
`microfiche and electronic media.
`Id. The example from the Specification cited by Patent Owner is as follows:
`Assume that a federal regulation, governing disposal of
`hazardous waste in landfills, is amended so that the regulation
`now requires analysis, reporting and record keeping of landfill
`samples. Part of the change language addresses what landfill
`sample information must be collected, including landfill type,
`landfill
`cell,
`parameter(s)
`sampled,
`identification
`of
`chain-of-custody, and laboratory results. The change is posted
`in the Federal Register and becomes promptly available as a
`hard copy (paper) and electronically, on the Internet.
`The invention begins tracking change using one or more
`intelligent agents (“IA’s”).
` An “intelligent agent” is a
`specialized program that resides on a network, or at a server as
`an applet, and can make decisions and perform tasks based on
`pre-defined rules. Preferably, two or more IA’s used by a
`business will have sufficiently different assignments that at
`most modest overlap occurs between the IA’s. An IA function
`is part of the Logic Menu, which is discussed subsequently.
`A change made to landfill waste regulations is identified
`by an IA on the Internet, and the relevant change information
`is routed to a selected metadata table in the invention. The
`change
`information
`includes one or more of
`five
`recommendations: (1) create a new WorkList; (2) change one or
`more data entry forms; (3) create one or more new reports;
`(4) create a new process; and (5) add one or more new
`
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`to
`images. Configuration Users can choose
`document
`automatically configure the preceding recommendation based
`on a set of default conditions, or can manually implement the
`configuration using a configuration toolkit.
`Ex. 1001, 10:21–60 (emphases added by Patent Owner); PO Resp. 17–18.
`In its Reply, Petitioner argues that “[r]ather than interpret ‘changes,’
`[Patent Owner] twice repeats the word in its construction and tacks on
`additional limitations that result in [Patent Owner’s] construction failing to
`give ‘changes’ its broadest reasonable interpretation.” 1751 Pet. Reply 5;
`see 1752 Pet. Reply 4. According to Petitioner, the “only limitation the ’482
`[patent] claims impose on ‘changes’ is that they ‘affect an application.’”
`1751 Pet. Reply 5; see 1752 Pet. Reply 4. Petitioner asserts that the “plain
`language of the claims does not limit ‘changes’ to the narrow category of
`changes [Patent Owner] alleges (i.e., those that arise from changes external
`to the application).” 1751 Pet. Reply 5; see 1752 Pet. Reply 4. Petitioner
`argues also that Patent Owner seeks to import unwarranted limitations into
`the claims with its proposal that changes that “affect an application” should
`be limited to changes “which impact how the application program should
`operate.” 1751 Pet. Reply 8; see 1752 Pet. Reply 7.
`Patent Owner admits that the term “change management layer” is not
`a term of art. PO Resp. 14; see Ex. 1058, 44:19–45:4, 83:13, 95:16–20.
`Petitioner agrees. 1751 Pet. 10; 1752 Pet. 10; 1751 Pet. Reply 9; 1752 Pet.
`Reply 8. We agree with Petitioner that the Specification of the ’482 patent
`“nowhere refers to changes ‘that arise from changes external to the
`application,’ and does not limit ‘changes’ in any way” and “[t]here is no
`disclaimer in the ’482 patent that limits the meaning of ‘changes’ in the
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`manner [Patent Owner] alleges.” 1751 Pet. Reply 6; see 1752 Pet. Reply 5;
`Ex. 1062 ¶¶ 4–5.
`While Patent Owner points to several portions of the Specification of
`the ’482 patent in support of its argument that the claimed changes should be
`limited to those external to the application and those that impact how the
`application program operates, we are not persuaded that the discussion in the
`Specification rises to the level of “reasonable clarity, deliberateness, and
`precision” necessary to provide a special definition for the claim term. See
`In re Paulsen, 30 F.3d at 1480. In fact, as noted by Petitioner, the
`“specification also describes an embodiment in which intelligent agents
`pursue ‘internal’ as well as ‘external Web activities.’” 1751 Pet. Reply 12
`(citing Ex. 1001, 19:66–67); see 1752 Pet. Reply 11 (citing the same
`evidence). Further, the Specification describes the detected changes, more
`generally, throughout as changes that may affect operation of a user’s
`business, rather than as changes that affect operation of the application
`program. See, e.g., Ex. 1001, Abstract (“The system . . . receives
`information on regulatory and non-regulatory changes that affect operations
`of the business.”), 9:34–38 (“[C]hange management layer 11 . . . includes
`one or more change agents that ‘cruise the Web’ and identify and bring to
`the user’s attention relevant regulatory and non-regulatory changes found on
`the Web that may affect a user’s business.”), 22:33–39 (“The system . . .
`does not require that every employee [of a business] become a programmer
`in order to continue to respond to regulatory and/or technological and/or
`social changes affecting business operations and/or information management
`requirements.”); see also Ex. 1062 ¶ 5 (Dr. Crovella testifying that a person
`of ordinary skill “would have understood that changes can affect an
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`application without impacting how the application ‘should’ operate, and
`those types of changes are also included in the plain and ordinary meaning
`of ‘changes that affect an application,’ [such as] a change to the processing
`resources available to an application could affect the application (e.g., by
`causing it to run faster or slower) without impacting how the application
`‘should’ operate (e.g., without altering any of the steps that the application
`attempts to perform)”).
`Based on the evidence in this record, we determine that the plain
`meaning of the phrase “change management layer for automatically
`detecting changes that affect an application” is consistent with the
`Specification. We are not persuaded that the recited “change management
`layer for automatically detecting changes that affect an application” is
`limited to detecting changes external to the application, or that any such
`changes must impact how the application program should operate, as
`proposed by Patent Owner. No further express construction of the claim
`phrase is necessary.
`2. automatically detecting changes that affect a particular
`application
`Claim 21 recites, in part, “automatically detecting changes that affect
`a particular application.” Ex. 1001, 33:52–53. Patent Owner argues that this
`step “corresponds to the ‘change management layer’” of claim 1. PO
`Resp. 20. Patent Owner further argues that “[t]he meaning of ‘automatically
`detecting’ should correspond to that of the ‘change management [layer]’ and
`the ‘changes’ therein should likewise ‘arise from changes external to the
`application.’” Id.
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`For the same reasons discussed above with respect to the the phrase
`“change management layer for automatically detecting changes that affect an
`application,” we are not persuaded that claim 21 should be limited in the
`manner asserted by Patent Owner. No further express construction of
`“automatically detecting changes that affect a particular application” is
`necessary.
`D. Principles of Law – Anticipation and Obviousness
`To prevail in its challenges to the patentability of the claims, a
`petitioner must establish facts supporting its challenges by a preponderance
`of the evidence. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). “In an [inter
`partes review], the petitioner has the burden from the onset to show with
`particularity why the patent it challenges is unpatentable.” Harmonic Inc. v.
`Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016) (citing 35 U.S.C.
`§ 312(a)(3) (requiring inter partes review petitions to identify “with
`particularity . . . the evidence that supports the grounds for the challenge to
`each claim”)). This burden never shifts to Patent Owner. See Dynamic
`Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir.
`2015) (citing Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1326–
`27 (Fed. Cir. 2008)) (discussing the burden of proof in inter partes review).
`To establish anticipation, each and every element in a claim, arranged
`as recited in the claim, must be found in a single prior art reference.
`See Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir.
`2008); Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed.
`Cir. 2001). Although the elements must be arranged or combined in the
`same way as in the claim, “the reference need not satisfy an ipsissimis verbis
`test,” i.e., identity of terminology is not required. In re Gleave, 560 F.3d
`
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`1331, 1334 (Fed. Cir. 2009); accord In re Bond, 910 F.2d 831, 832 (Fed.
`Cir. 1990).
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`between the subject matter sought to be patented and the prior art are such
`that the subject matter as a whole would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
`406 (2007). The question of obviousness is resolved on the basis of
`underlying factual determinations including: (1) the scope and content of
`the prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of ordinary skill in the art; and (4) objective evidence
`of nonobviousness. See Graham v. John Deere Co., 383 U.S. 1, 17–18
`(1966). In an inter partes review, Petitioner cannot satisfy its burden of
`proving obviousness by employing “mere conclusory statements.” In re
`Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016). Thus,
`to prevail Petitioner must explain how the proposed combinations of prior
`art would have rendered the challenged claims unpatentable.
`At this final stage, we determine whether a preponderance of the
`evidence of the record shows that the challenged claims are anticipated by
`and/or would have been obvious in view of asserted prior art. We analyze
`the asserted grounds of unpatentability in accordance with those principles.
`E. Grounds Based, At Least in Part, on Popp
`Petitioner asserts that independent claims 1 and 21, as well as claims
`7, 8, 10–13, 18–20, 22, 27–33, and 38–40 which depend therefrom, are
`anticipated by Popp. 1751 Pet. 16–28; 1752 Pet. 15–23. Petitioner also
`asserts that dependent claims 13–17 and 33–37 would have been obvious in
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`view of the combination of Popp and Anand (1751 Pet. 57–60), and that
`dependent claims 3–6 and 23–26 would have been obvious in view of the
`combination of Popp and Codd (1752 Pet. 37–43). Patent Owner argues that
`Popp does not disclose a “change management layer,” as recited in each of
`independent claims 1 and 21. PO Resp. 22–25.
`We have reviewed the entire record before us, including the parties’
`contentions and supporting evidence presented during this trial. For the
`reasons explained below, we determine that Petitioner has demonstrated, by
`a preponderance of the evidence, that claims 1, 3–8, and 10–40 are
`unpatentable.
`
`1. Anticipation by Popp
`a. Overview of Popp
`Popp relates to an “object-oriented approach [that] provides the ability
`to develop and manage Internet transactions.” Ex. 1004, Abstract.
`According to Popp, “[l]ocal applications can be accessed using any
`workstation connected to the Internet regardless of the workstation’s
`configuration.” Id. Popp describes that “[o]nce [a] connection is
`established, the present invention is used with an application on the server
`side of the connection to dynamically generate Web pages [that] contain
`application information and provide the ability for the user to specify input.”
`Id. at 3:55–59. Web pages can be generated in response to the user input.
`Id. at 3:61–63.
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`Figure 2 of Popp is reproduced below:
`
`
`
`As seen in Figure 2 of Popp, Client Browser 202 is connected via
`Internet 204 to Server Domain 208, which includes among other things
`Application 214 and Database 224. Ex. 1004, 6:40–7:23, 7:31–34.
`Application 214 includes objects 216 that correspond to the HTML elements
`that define a Web page and are arrange