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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
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`Petitioners
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`v.
`PERSONALIZED MEDIA COMMUNICATIONS, LLC,
`Patent Owner
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`
`
`Case No.: IPR2016-00755
`Patent No.: 8,191,091
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`REQUEST FOR REHEARING UNDER 37 C.F.R. § 42.71(d)
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`
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`Case No.: IPR2016-00755
`Patent No.: 8,191,091
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`TABLE OF CONTENTS
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`
`I.
`INTRODUCTION AND STATEMENT OF RELIEF REQUESTED ....... 1
`II. LEGAL STANDARDS .................................................................................... 2
`III. THE CONSTRUCTION OF THE “DECRYPT” TERMS IS
`ERRONEOUS .................................................................................................. 3
`A. The Specification Defines “Decrypt” to Mean a Digital Process on
`Digital Data, Excluding Analog Processes such as the Descrambling
`of Analog Television. ............................................................................. 4
`B. The File History Contains Multiple Disclaimers Limiting
`Decryption to Operations on Digital Data and Excluding Analog
`Processes. ................................................................................................ 8
`C. The Board’s Inquiries into Irrelevant and Tangential Matters Do
`Not Cure Its Failure to Adhere to the Specification and Prosecution
`History. ................................................................................................. 11
`IV. THE CONSTRUCTION OF THE “ENCRYPTED DIGITAL
`INFORMATION TRANSMISSION INCLUDING ENCRYPTED
`INFORMATION” IS ERRONEOUS........................................................... 14
`V. CONCLUSION .............................................................................................. 14
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`Case No.: IPR2016-00755
`Patent No.: 8,191,091
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`TABLE OF AUTHORITIES
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`
`Cases
`Builders Concrete, Inc. v. Bremerton Concrete Prods. Co.,
`757 F.2d 255 (Fed. Cir. 1985) ............................................................................... 13
`In re Smith Int’l, Inc.,
`--- F.3d ----, 2017 WL 4247407 (Fed. Cir. Sept. 26, 2017) .................................... 4
`Microsoft Corp. v. Proxyconn, Inc.,
`789 F.3d 1292 (Fed. Cir. 2015) ............................................................................... 2
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ........................................................................... 3, 4
`PowerOasis, Inc. v. T-Mobile USA, Inc.,
`522 F.3d 1299 (Fed. Cir. 2008) ............................................................................. 13
`Seachange Int’l, Inc. v. C-COR, Inc.,
`413 F.3d 1361 (Fed. Cir. 2006) ............................................................................. 11
`Southwall Technologies, Inc. v. Cardinal IG Co.,
`54 F.3d 1570 (Fed. Cir. 1995) ............................................................................... 13
`Tempo Lighting, Inc. v. Tivoli, LLC,
`742 F.3d 973 (Fed. Cir. 2014) ........................................................................... 3, 14
`
`
`
`Rules
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`37 C.F.R. § 42.100 ...................................................................................................... 2
`37 C.F.R. § 42.71 ........................................................................................................ 2
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`Case No.: IPR2016-00755
`Patent No.: 8,191,091
`INTRODUCTION AND STATEMENT OF RELIEF REQUESTED
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`I.
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`The Board’s Final Written Decision (“Decision” or “Dec.”) of September
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`19, 2017 (Paper 42), spanning some 155 pages, is so one-sided and so results-
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`oriented that an objective assessment of the Decision yields an inescapable
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`conclusion: The intention from the start was to cancel this patent.
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`An example is the Board’s application of plainly erroneous claim
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`constructions for two key claim terms in U.S. Pat. No. 8,191,091. The terms are
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`“decrypt” and “encrypted digital information transmission including encrypted
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`information.” The term “decrypt” (or variations such as “decrypting,” “encrypted,”
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`etc.) is found in each of the challenged claims. The “encrypted digital information
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`transmission” term is found in independent claims 13 and 20.
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`Patent Owner submits that this Request for Rehearing (“Request”) should be
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`granted because the Decision misapprehended and overlooked evidence provided
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`and arguments made by Patent Owner regarding the proper construction of these
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`terms. Patent Owner asks that the Board grant this Request, vacate the Decision
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`and issue a new or supplemental Final Written Decision correcting the claim
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`constructions and confirming the affected claims as patentable.
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`The constructions of the aforementioned terms are incorrect as a matter of
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`law. First, the Board ignored key passages from the specification, whose meanings
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`are undisputed, and compounded the error by instead focusing on a passage whose
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`1
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`meaning is disputed to support its construction. Second, the Board’s claim
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`construction completely disregarded multiple instances of prosecution disclaimer.
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`The prosecution disclaimers could not be more clear and unequivocal.
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`Third, the Board sidestepped the specification and file history by
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`strategically applying claim differentiation to justify its constructions. In every
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`case, the opposite conclusion could have been reached. Furthermore, the Board
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`applied the doctrine of claim differentiation as a rule, when it is merely a guide,
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`and as such it cannot defeat a construction of a term established by the
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`specification or prosecution history.
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`II. LEGAL STANDARDS
`A request for rehearing “must specifically identify all matters the party
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`believes the Board misapprehended or overlooked, and the place where each
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`matter was previously addressed in a motion, an opposition, or reply.” 37 C.F.R.
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`§ 42.71(d).
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`Under the broadest reasonable interpretation standard, “claims should
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` always be read in light of the specification and teachings in the underlying
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`patent,” and the meaning of a claim must “reasonably reflect the plain language
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`and disclosure” instead of being “unreasonably broad.” Microsoft Corp. v.
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`Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015); 37 C.F.R. § 42.100.
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`Thus, in construing a term the PTAB should consider: (1) the ordinary and
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`Case No.: IPR2016-00755
`Patent No.: 8,191,091
`customary meaning (if one exists); (2) the claim language; (3) the specification;
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`and (4) the prosecution history. Tempo Lighting, Inc. v. Tivoli, LLC, 742 F.3d 973,
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`977 (Fed. Cir. 2014); see Phillips v. AWH Corp., 415 F.3d 1303, 1312-1313 (Fed.
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`Cir. 2005).
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`III. THE CONSTRUCTION OF THE “DECRYPT” TERMS IS
`ERRONEOUS
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`Independent claims 13, 20 and 26 recite various “decrypt” and “encrypt”
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`type terms (collectively, “decrypt terms”). Patent Owner submitted that the
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`“decrypt” terms should be construed to mean “a method that uses a digital key in
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`conjunction with an associated algorithm to decipher (render intelligible or
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`usable) digital data.” Patent Owner Response (“POR”), Paper 20, at 9 [emph.
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`added.] Patent Owner explained that its construction excluded operations on analog
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`information, such as the descrambling of analog television. Id. at 10.
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`The Board determined that the “decrypt” terms are not limited to digital
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`processes applied to digital data, but broadly encompass analog processes such as
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`descrambling analog television. Dec. at 33. The Board did not proceed from an
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`ordinary and customary meaning of the “decrypt” terms because there allegedly
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`was no established meaning. Dec. at 32 (“The evidence shows the meaning of the
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`terms to be in flux, with no established convention”). For all intents and purposes,
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`the Board’s construction of “decrypt” is based entirely on a single sentence in the
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`Patent No.: 8,191,091
`‘091 Patent specification, described by the Board as “controversial.” Dec. at 27
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`(citing Ex. 1003, 159:47–61.)
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`A. The Specification Defines “Decrypt” to Mean a Digital Process on
`Digital Data, Excluding Analog Processes such as the
`Descrambling of Analog Television.
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`The Federal Circuit has stated time and again that the specification is the
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`primary source for ascertaining the meaning of claim terms. In Phillips v. AWH
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`Corp., the Federal Circuit stated:
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`The specification is, thus, the primary basis for construing the claims.
`On numerous occasions since then, we have reaffirmed that point,
`stating that “[t]he best source for understanding a technical term
`is the specification from which it arose, informed, as needed, by the
`prosecution history.
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`415 F.3d 1303, 1315 (emph. added, cites omitted). This maxim was reaffirmed in
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`the Federal Circuit’s decision reversing the Board in In re Smith Int’l, Inc., --- F.3d
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`----, 2017 WL 4247407 (Fed. Cir. Sept. 26, 2017) at *5 (proper construction is that
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`which “corresponds with what and how the inventor describes his invention in the
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`specification”) [cite omitted].
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`A mere two passages in the specification should have decided the issue for
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`“decrypt.” First, the ‘091 Patent specification describes the “decrypt” term as
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`follows:
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`Decryptors, 107, 224 and 231, are conventional decryptors, well
`known in the art, with capacity for receiving encrypted digital
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`Case No.: IPR2016-00755
`Patent No.: 8,191,091
`information, decrypting said information by means of a selected
`cipher algorithm and a selected cipher key, and outputting the
`decrypted information.
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`Ex. 1003 (‘091 Patent, emph. added) at 147:21-26; see POR at 9-10.
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`The passage is definitional. The inventors understood the term to have a
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`meaning in the art which they set forth explicitly and adopted as their own. The
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`Decision did not address this first passage for “decrypt.”
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`Second, the ‘091 Patent affirmatively defines decryption as being distinct
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`from analog descrambling:
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`In the prior art, various means and methods exist for regulating the
`reception and use of electronically transmitted programming. Various
`scrambling means are well known in the art for scrambling, usually
`the video portion of analogue television transmissions in such a
`fashion that only subscriber stations with appropriate descrambling
`means have capacity to tune suitably to the television transmissions
`and display
`the
`transmitted
`television
`image
`information.
`Encryption/decryption means and methods, well known in the art,
`can regulate the reception and use of, for example, digital video and
`audio
`television
`transmissions, digital audio
`radio and
`phonograph transmissions, digital broadcast print transmission,
`and digital data communications.
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`Ex. 1003 (‘091 Patent) at 143:18-30, POR at 10-11.
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`This passage establishes a dichotomy: encryption/decryption apply to digital
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`signals, whereas scrambling/descrambling apply to analog signals. It is consistent
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`Patent No.: 8,191,091
`with the definition of “decrypt” set forth in the column 147 passage. The Decision
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`wholly ignored this passage from the specification in its analysis of the decrypt
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`terms.1
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`While ignoring the passages that explicitly and indisputably define
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`“decrypt,” the Board myopically focused on the single “controversial” passage at
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`the end of a specific embodiment, Example #7. Example #7 (spanning thirteen
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`columns) describes a complex embodiment for the decryption of a digital
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`television transmission containing encrypted digital video and encrypted digital
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`audio that has been encrypted using three separate keys. Ex. 1003 (‘091 Patent) at
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`148:13-20, 30-38.
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`
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`At the end of the thirteen columns the specification proceeds to list a series
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`of modifications that could be made to the Example #7 embodiment. One is:
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`And for example, the “Wall Street Week” transmission may be of
`conventional analog television, and the decryptors, 107, 224, and
`231, may be conventional descramblers, well, known in the art, that
`descramble analog television transmissions and are actuated by
`receiving digital key information.
`Ex. 1003 at 159:57-61 [emph. added]; POR at 11-12.
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`1 The Decision only referenced the column 143 passage in its discussion of the
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`“programming” term (Decision at 59) and “digital video and digital audio” terms
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`in certain substitute claims (Decision at 126).
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`The Board based its claim construction on this single sentence, which the
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`Board called a “controversial sentence.” Dec. at 23. The Board erroneously
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`asserted that this “controversial sentence” defines “decrypt.” Id.
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`
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`First, this sentence must be understood in the context of the introduction to
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`the paragraph, which states:
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`It is obvious to one of ordinary skill in the art that the foregoing is
`presented by way of example only and that the invention is not to be
`unduly restricted thereby since modifications may be made in the
`structure of the various parts without functionally departing from
`the spirit of the invention.
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`Ex. 1003 at 159:46-61 [emph. added]. Accordingly, the “controversial
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`sentence” can only be understood as a modification to the structure of the
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`Example #7 embodiment: descramblers would replace decryptors in the case
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`of analog television. POR at 11-13. The Board has improperly conflated a
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`modification to the components of an embodiment with a definition.
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`Next, the Board’s reliance on this one sentence is unreasonable. The
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`premise that a “controversial sentence” susceptible to multiple
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`interpretations can be a definition is false, particularly where, as here, the
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`other passages in the specification (discussed above) define the “decrypt”
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`term with clarity and without ambiguity. The Board improperly failed to
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`consider these passages in its zeal to construct the term in a broadest
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`Patent No.: 8,191,091
`possible construction, rather than the broadest reasonable construction based
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`on what the specification teaches about the invention. The Board thus erred
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`by failing to consider the specification as a whole.
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`The passages at columns 143 and 147 of the ‘091 Patent provide a
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`definition for the term. The “controversial sentence” cannot trump that
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`definition.
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`B.
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`The File History Contains Multiple Disclaimers Limiting
`Decryption to Operations on Digital Data and Excluding Analog
`Processes.
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`
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`PMC cited to three instances of disclaimer during prosecution of the ‘091
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`Patent that limit “decrypt” to operations on digital data and exclude operations on
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`analog information. POR at 15-16.
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`
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`First Disclaimer. The first disclaimer was made in an office action response
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`in April 2011 which first introduced the claims at issue here, including claim 35
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`(issued as claim 13), claim 52 (issued as claim 20), and claim 53 (issued as claim
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`26). Each claim recited the “decrypt” terms. Ex. 1035 at 7-9.
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`
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`The inventors disclaimed “decrypting” from encompassing analog
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`descrambling for these claims:
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`All four [references] disclose the use of encoded control signals or
`other data to control the unscrambling of an analog video signal. . . .
`The claims of this amendment, however, claim material relating
`to the encryption and decryption of signals. . . . Each of the claims
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`Patent No.: 8,191,091
`of this amendment involves the use of digital signals through
`reference to “decryption” and “encryption.” “Encryption and
`decryption,” . . . “are not broad enough to read on scrambling and
`unscrambling.” Therefore, because [the references] are directed to
`unscrambling of analog signals, none teach or suggest a method of
`controlling the decryption of digital information as is presented in
`the claims of this amendment.
`Ex. 1035 at 9-10. The disclaimer is unequivocal: encryption/decryption requires
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`digital signals and excludes the descrambling of analog signals.
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`
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`This first disclaimer was made when the claims recited “information
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`transmission including encrypted information.” The Board’s intricate claim
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`differentiation analysis focusing on later versions of the claims (e.g., claim 45
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`reciting “encrypted digital information transmission including encrypted
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`information”) (Dec. at 32-33, 40) is of no moment. The inventors made clear from
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`the start that the “decrypt”/“encrypt” terms require digital signals and exclude
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`analog signals.
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`
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`Second Disclaimer. The meaning of “decrypt” does not change based on
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`what is being decrypted (e.g., “programming,” “encrypted digital information,”
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`etc.). The inventors made this very point in the December 2011 office action
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`response that inserted “encrypted digital” before “information transmission”:
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`For the sake of advancing prosecution, Applicants amend independent
`claims 45 and 52 to clarify that the information transmission received
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`Case No.: IPR2016-00755
`Patent No.: 8,191,091
`. This
`transmission.
`.
`.
`information
`is an encrypted digital
`amendment in no way affects Applicants’ position that encryption
`requires a digital signal.
`Ex. 1039 at 10 [emph. added]. The inventors did not rescind the April 2011
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`disclaimer with the December 2011 amendment—they reaffirmed it. The
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`disclaimer was repeated elsewhere in the December 2011 paper. Ex. 1039 at 10
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`(Reference “could not teach encryption because it only disclosed an analog signal
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`transmission.”; “decryption requires a digital signal”; “encryption and decryption
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`are not broad enough to read on scrambling and unscrambling.”)
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`
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`Third Disclaimer. The October 2011 office action response stated yet again
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`that “decrypt” excludes analog signals. Ex. 1037 at 11 (“decryption requires a
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`digital signal” and “encryption and decryption are not broad enough to read on
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`scrambling and unscrambling.”). The inventors also explained:
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`Claims 45-50 and 52-56 claim methods of decrypting programming at
`a receiver station. . . . Mason characterizes the invention as a Direct
`Broadcast Satellite (“DBS”) system. . . . DBS systems were originally
`designed only to accommodate analog transmissions. Mason does
`not contemplate digital transmissions, therefore it does not
`address encryption. Its scope is limited to scrambling and
`unscrambling. Mason does not anticipate claims 45-50 and 52-56.
`Ex. 1037 at 11.
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`
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`The Board Response. The Board cited the above passages (Decision at 37),
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`but failed to analyze them. In a single sentence, the Board dismissed the
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`Patent No.: 8,191,091
`prosecution disclaimers in the ‘091 Patent as unworthy of examination because
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`they do not answer its questions about claim differentiation. Dec. at 38-39 (e.g., the
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`difference between “encrypted information” and “encrypted digital information”).
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`Dec. at 38-39. This sidestep is in error, as is the Board’s reliance on claim
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`differentiation in favor of “a contrary construction required by the specification or
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`the prosecution history.” Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361,
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`1369 (Fed. Cir. 2006).
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`C. The Board’s Inquiries into Irrelevant and Tangential Matters Do
`Not Cure Its Failure to Adhere to the Specification and
`Prosecution History.
`It is telling that the Decision spends some twenty pages addressing the
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`construction of the “decrypt” terms. Dec. at 22-41. The correct result can be
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`provided in a few pages by reference to the relevant portions of the specification
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`and prosecution history, which provide a ready answer. But the task of justifying
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`an incorrect result that appears preordained requires significantly more work.
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`Perhaps this explains the Board’s various forays and detours into matters that are
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`irrelevant or peripheral.
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`For example, the Decision has a lengthy discussion about the meaning of the
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`term “programming.” Dec. at 24-25. But the issue is the meaning of “decrypt”, not
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`“programming.” The Board’s effort to use “programming” to bootstrap its
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`preferred construction of “decrypt” is wrong at every level. The ‘091 Patent
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`Patent No.: 8,191,091
`defines programming as “everything that is transmitted electronically to entertain,
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`instruct or inform, including television, radio, broadcast print, and computer
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`programming [as] well as combined medium programming.” Ex. 1003 at 6:31-34.
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`Programming is thus defined as types of content that “entertain, instruct, or
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`inform.” Other than being transmitted “electronically,” the definition is agnostic as
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`to how the content is delivered. “Programming” is not defined in terms of how it is
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`formatted (e.g., analog or digital) or how it is transmitted (e.g., modulation,
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`frequency, type of transmitter). Thus, the Board’s tortured argument that (1)
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`“programming” is defined to include analog transmissions, and thus (2)
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`“decrypting programming” must mean “decrypting analog transmissions,” and thus
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`(3) “decrypting” encompasses descrambling analog transmissions, is erroneous
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`from start to finish. Dec. at 24-26. This convoluted logic cannot overcome the clear
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`teachings in the specification and file history.
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`The Board’s discourses on the original patent, U.S. Pat. No. 4,965,490 (Ex.
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`1009, “’490 Patent”) for claim construction are irrelevant.2 The determination of
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`2 The Board asserted the following: “Patent Owner confirmed that the ’490 patent
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`largely described protecting mixed analog and digital television signals with
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`encryption.” That is incorrect. The Board relied on this statement by Patent
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`Owner’s counsel from the oral hearing: “[T]he thrust of the whole patent [is] to
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`protect all manner of transmissions.” Dec. at 15. The Board’s assertion relies on
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`12
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`Patent No.: 8,191,091
`the meaning of claim terms is based only on the appended specification, the ‘091
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`Patent CIP specification. See PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d
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`1299, 1311 (Fed. Cir. 2008) (“[T]he construction of ‘customer interface’ that must
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`be supported by the written description of the Original Application is the
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`construction given by the district court for the term as used in the ‘658 and
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`‘400 Patents [CIP Applications].”) [emph. added].
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`The Board also cites Builders Concrete, Inc. v. Bremerton Concrete Prods.
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`Co., 757 F.2d 255, 258 (Fed. Cir. 1985) for the notion that prosecution disclaimer
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`is an “equitable tool” that the Board is free to disregard. Dec. at 41. Builders
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`Concrete involves file history estoppel and is thus inapposite. Prosecution
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`disclaimer is a tool for claim construction; file history estoppel is not. See
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`Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1578 (Fed. Cir.
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`1995) (limit on range of equivalents due to prosecution history estoppel is
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`the fallacious premise that encryption and scrambling are the only ways to protect
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`information. There are many ways to protect transmissions besides encryption and
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`scrambling. See, e.g., Ex. 1009, Fig. 4 (interrupt means); 4:47-54 (special signal
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`words); Ex. 1003, 7:40-42 (“a variety of means and methods for restricting the use
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`of transmitted communications to only duly authorized subscribers”); 143:30-39
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`(jamming and disabling).
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`13
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`Case No.: IPR2016-00755
`Patent No.: 8,191,091
`irrelevant to interpretation of those claims). The cited comment (id.) from Tempo
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`Lighting, Inc. v. Tivoli, LLC, 742 F.3d 973 (Fed. Cir. 2014) is mere dicta.
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`IV. THE CONSTRUCTION OF THE “ENCRYPTED DIGITAL
`INFORMATION TRANSMISSION INCLUDING ENCRYPTED
`INFORMATION” IS ERRONEOUS
`
`The Board’s construction that “encrypted digital information transmission
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`including encrypted information” must encompass scrambled analog information is
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`erroneous. Dec. at 9, 21. The Board’s conclusion rests on its assertion that
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`“encrypted information” would otherwise be superfluous. Decision at 10. Patent
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`Owner respectfully submits that the Board has misapprehended the structure of the
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`claim. The “encrypted information” term simply establishes an antecedent basis for
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`the subsequent step of “decrypting said encrypted information.” The term is not
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`superfluous.
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`A proper construction of “decrypt” also resolves this claim construction
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`issue because “encrypted information” must be digital. POR at 4-9. Also, the file
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`history indicates that the “digital” modifier was added subject to the statement that
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`the claim was already limited to digital information. See Ex. 1039 at 10 (discussed
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`above).
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`V. CONCLUSION
`Patent Owner PMC respectfully requests that the Board grant this request
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`for rehearing.
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`Dated: October 19, 2017
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`Case No.: IPR2016-00755
`Patent No.: 8,191,091
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`Respectfully submitted,
`
`/Stephen T. Schreiner/
`
`
`
`Stephen T. Schreiner
`Registration No.: 43,097
`Goodwin Procter LLP
`901 New York Avenue, NW
`Washington, DC 20001
`Tel: (202) 346-4336
`Fax: (202) 346-4444
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`Case No.: IPR2016-00755
`Patent No.: 8,191,091
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`The undersigned certifies that a copy of this Request for Rehearing was
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`CERTIFICATE OF SERVICE
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`electronically served on:
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`msernel@kirkland.com
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`jmerkin@kirkland.com
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`egoryunov@kirkland.com
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`Apple-PMC-PTAB@kirkland.com
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`garovas@kirkland.com
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`arabinowitz@kirkland.com
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`Under 37 C.F.R. § 42.6(e)(1) and the consent found in Section I.D of the Petition.
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`Dated: October 19, 2017
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`By:
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` /Stephen T. Schreiner/
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`Stephen T. Schreiner
`Registration No.: 43,097
`Goodwin Procter LLP
`901 New York Avenue, NW
`Washington, DC 20001
`Tel: (202) 346-4336
`Fax: (202) 346-4444
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