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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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`
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`Case No.: IPR2016-01520
`Patent No.: 8,559,635 B1
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`REQUEST FOR REHEARING UNDER 37 C.F.R. § 42.71(d)
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`Case No.: IPR2016-01520
`Patent No.: 8,559,635
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
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`Ariad Pharmaceuticals, Inc. v. Eli Lilly and Co.,
`598 F.3d 1336 (Fed. Cir. 2010) ............................................................................ 3
`
`Astrazeneca AB v. Mutual Pharm. Co., Inc.
`384 F.3d 1333 (Fed. Cir. 2004) ............................................................................ 8
`
`Nidec Motor Corporation v. Zhongshan Broad Ocean Motor Co. Ltd,
`851 F.3d 1270 (Fed. Cir. 2017) .......................................................................... 11
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`Personal Web Techs., LLC v. Apple, Inc.,
`848 F.3d 987 (Fed. Cir. 2017) ............................................................................ 11
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`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2001) ............................................................................ 7
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`Polaris Industries, Inc. v. Arctic Cat, Inc.,
`882 F.3d 1056 (Fed. Cir. 2018) .......................................................................... 11
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`PowerOasis, Inc. v. T–Mobile USA, Inc.,
`522 F.3d 1299 (Fed. Cir. 2008) ................................................................ 3, 4, 5, 6
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`Technology Licensing Corp. v. Videotek, Inc.,
`545 F.3d 1316 (Fed. Cir. 2008) ........................................................................ 2, 6
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`Therma-Tru Corp. v. Peachtree Doors Inc.,
`44 F.3d 988 (Fed. Cir. 1995) ............................................................................ 2, 5
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`Vicor Corporation v. SynQor, Inc.,
`869 F.3d 1309 (Fed. Cir. 2017) ............................................................................ 5
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`Statutes
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`5 U.S.C. § 706(2) ....................................................................................................... 5
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`35 U.S.C. § 112 .................................................................................................... 2, 10
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`35 U.S.C. § 120 .......................................................................................................... 2
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`Case No.: IPR2016-01520
`Patent No.: 8,559,635
`Board’s act ................................................................................................................. 7
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`Other Authorities
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`37 C.F.R. § 42.1(b) .................................................................................................... 4
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`37 C.F.R. § 42.71 (d) ................................................................................................. 2
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`Decision on Appeal in Reex. Nos. 90/006,563, 90/006,698.................................. 3, 6
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`Final Written Decision, IPR2014-01533 ............................................................... 4, 8
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`Final Written Decision, IPR2016-00755 ................................................................... 4
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`Final Written Decision, IPR2016-01520 ................................................................... 4
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`Institution Decision, IPR2014-01533 .................................................................... 4, 8
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`U.S. Patent No. 4,694,490 .................................................................................passim
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`U.S. Patent No. 8,559,635 .............................................................................. 1, 3, 4, 7
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`Case No.: IPR2016-01520
`Patent No.: 8,559,635
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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 Board’s Priority Determination for “Programming” Overrules Decisions
`on the Same Issue Involving the Same Panel Members. ............................................ 3
`The Board Misconstrued PowerOasis as Establishing a New “Compare
`IV.
`Claim Term Definitions” Test for Priority. ................................................................ 5
`V. The Board Disregarded Disclosure in the ’490 Patent Supporting
`“Programming” as Defined in the ’635 Patent. .......................................................... 7
`A. The Board Surreptitiously Advanced a Theory of Specification Disclaimer
`to Ignore Relevant Disclosure in the ’490 Patent. .................................................. 7
`B. The Priority Inquiry is Conducted as of 1981, not 1987. ............................... 8
`C. The Board Ignored Disclosure in the ’490 Patent and Other Evidence
`Showing Support for “Programming.” ................................................................... 9
`VI.
`Priority Support Exists in the ’490 Patent for “Unaccompanied by Any Non-
`Digital Information Transmission” ............................................................................. 9
`A. The Board Applies an Incorrect Legal Standard to the ’490 Patent’s
`Disclosure of a Digital Information Transmission Without Any Analog
`Information ............................................................................................................ 10
`B. The Board’s Finding is Based on a Misunderstanding of the term
`“Transmission” as used in the ’490 and ’635 Patents. .......................................... 12
`VII. Conclusion .................................................................................................... 13
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`Case No.: IPR2016-01520
`Patent No.: 8,559,635
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`I.
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`INTRODUCTION AND STATEMENT OF RELIEF REQUESTED
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`Patent Owner submits that this Request for Rehearing should be granted
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`because the Board’s Final Written Decision of February 15, 2018 (“FWD” or
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`“Decision”) misapprehended and overlooked arguments and evidence presented by
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`Patent Owner. Patent Owner asks that the Board grant this Request, vacate the
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`Decision and issue a new or supplemental Final Written Decision correcting the
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`priority determinations and confirming the affected claims as patentable.
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`First, the Board determination that U.S. Patent No. 4,694,490 (the “’490
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`Patent”) fails to support priority for the term “programming” in U.S. Patent No.
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`8,559,635 (the “’635 Patent”) overrules three prior decisions of the Board on
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`precisely the same issue. Second, the Board applied a legally incorrect test for
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`priority based on comparing claim term definitions between specifications instead
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`of comparing the claimed invention to the disclosure of the earlier specification.
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`Third, the Board’s finding that the ’490 Patent specification fails to support priority
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`because its disclosure is limited to a single passage in the specification is an
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`improper sub silentio application of the doctrine of specification disclaimer.
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`Priority to the ’490 Patent filing date is established once its specification is given
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`full credit for its disclosure of programming as defined by the ’635 Patent.
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`Additionally, the Board’s priority determination for the limitation
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`“encrypted digital information transmission is unaccompanied by any non-digital
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`1
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`Patent No.: 8,559,635
`information” relied on speculation contrary to the explicit disclosure of the ’490
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`Patent. The French Chef example that the Board acknowledged was the “primary
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`embodiment” discloses a distinct channel for delivering an encrypted digital recipe
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`transmission. The Board disregards controlling law on negative limitations when it
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`finds that disclosure to be insufficient because it does not go on to state that analog
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`information is “prohibited.”
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`II. LEGAL STANDARDS
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`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 matter
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`was previously addressed in a motion, an opposition, or reply.” 37 C.F.R. § 42.71
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`(d).
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`A claim in a CIP application is entitled to priority when the invention as
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`defined by the later CIP specification finds written description support in the
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`earlier application pursuant to 35 U.S.C. § 112. See 35 U.S.C. § 120; Therma-Tru
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`Corp. v. Peachtree Doors Inc., 44 F.3d 988, 992 (Fed. Cir. 1995); Technology
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`Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1332-33 (Fed. Cir. 2008). The
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`sufficiency of the written description requirement for priority must be judged based
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`on what the language of the specification would have meant to one of ordinary
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`skill in the art as of the filing date of the earlier application. Ariad
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`Pharmaceuticals, Inc. v. Eli Lilly and Co., 598 F.3d 1336, 1355–57 (Fed. Cir.
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`2
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`Patent No.: 8,559,635
`2010); PowerOasis, Inc. v. T–Mobile USA, Inc., 522 F.3d 1299, 1306 (Fed. Cir.
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`2008) (quoting Vas–Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563–64, (Fed. Cir.
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`1991)) (holding that the prior application must “convey with reasonable clarity to
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`those skilled in the art that, as of the filing date sought, [the inventor] was in
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`possession of the invention”) (emphasis added).
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`III. The Board’s Priority Determination for “Programming” Overrules
`Decisions on the Same Issue Involving the Same Panel Members.
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`Independent claim 3 recites “programming.” The Board determined that the
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`“programming” as used in the ’635 Patent is not supported by the disclosure of the
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`’490 Patent. FWD at 12-13. The Board’s holding overrules three prior decisions on
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`the very same issue--whether the term “programming” finds written description
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`support in the ’490 Patent to establish 1981 priority.
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`In its decision of January 19, 2010 on the ’277 patent, which shares the
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`identical specification of the ’635 Patent, the Board found that priority to the ’490
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`Patent existed for “programming.” Decision on Appeal in Reex. Nos. 90/006,563,
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`90/006,698 at 43-45 (Turner, Boalick, Hairston) (cited in Patent Owner Response
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`(“POR”), 14-15.)1
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`1 The Board later disregarded the ‘277 Patent decision on the basis that “the Board did not
`address the PowerOasis holding,” which was used to justify a contrary outcome on the identical
`issue in IPR2016-00755. See Final Written Decision, IPR2016-00755, at 22-23 (Easthom, Ward,
`Braden). The decision in IPR2016-00755 incorrectly deemed PowerOasis a change in the law
`3
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`Patent No.: 8,559,635
`In its decision of March 26, 2015 on the ’749 patent, which shares the same
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`specification, the Board found that priority to the ’490 Patent existed for
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`“programming” for challenged claim 3. See Institution Decision, IPR2014-01533,
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`Paper 7, at 11-12 (Braden, Easthom, Ward).
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`In its decision of March 8, 2016 on the ’749 patent, the Board found that
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`priority to the ’490 Patent existed for “programming” for multiple substitute
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`claims. Final Written Decision, IPR2014-01533, Paper 60 at 31-32 (Braden,
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`Easthom, Ward).
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`Following those decisions over a six year period, the Board reversed itself in
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`this proceeding by holding there was no priority to the ’490 Patent for
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`“programming” in the ’635 Patent. Final Written Decision, IPR2016-01520, at 11-
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`12 (Turner, Easthom, Braden).
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`Patent Owner appreciates that the Board does not consider itself to be a
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`tribunal that is subject to general principles of stare decisis. However, basic
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`principles of fairness and due process, as well as the mandate to provide “just,
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`speedy, and inexpensive resolution” (37 C.F.R. § 42.1(b)), are compromised when
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`the Board issues conflicting decisions on identical issues for the same Patent
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`Owner. The perceived inequity is aggravated when the jurists on the panel presided
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`providing that priority was to be determined based on comparing the definitions of a claim term
`between the two specifications. See id. at 23. That is not the case. See Section IV, infra.
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`4
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`Patent No.: 8,559,635
`over the earlier decisions. Such conflicting opinions which are highly prejudicial to
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`the Patent Owner represent the kind of agency action that is “arbitrary, capricious,
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`an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §
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`706(2); see Vicor Corporation v. SynQor, Inc., 869 F.3d 1309, 1320-23 (Fed. Cir.
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`2017) (vacating and remanding the Board’s decision because of inconsistent
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`results).
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`IV. The Board Misconstrued PowerOasis as Establishing a New “Compare
`Claim Term Definitions” Test for Priority.
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`The Board’s erroneous priority determination turns on a misconception that
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`PowerOasis was a change in the law. It was not. Like cases before it, PowerOasis
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`held that priority is assessed based on whether the earlier filed application provides
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`written description support for the claimed invention of the later application. POR
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`at 14 (citing to Technology Licensing, 545 F.3d at 1333-34 (Fed. Cir. 2008);
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`PowerOasis, 522 F.3d at 1306)); see, e.g., Therma-Tru Corp., 44 F.3d at 992 (Fed.
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`Cir. 1995).
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`After acknowledging Patent Owner’s point that the test under PowerOasis,
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`like earlier cases, was “whether the earlier filed application alone provides written
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`description support for the claim in question,” the Board flatly rejected it: “Patent
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`Owner’s argument contradicts the holding of PowerOasis.” FWD at 11
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`(emphasis added). According to the Board, a new test for priority was established:
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`5
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`Patent No.: 8,559,635
`“Under Power Oasis, we are charged with determining if claim terms have
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`different meanings based on different specifications.” FWD at 13. In other words,
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`the priority test was whether the definition of the claim term for the later
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`specification would be different from the definition of the claim term for the earlier
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`specification. The Board went on to reject priority to the ’490 Patent because of
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`“the change in the meaning of ‘programming’ between the two specifications”.
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`FWD at 11.
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`But PowerOasis did not change the nature of the priority inquiry. Patent
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`Owner brought the Board’s attention to Technology Licensing as proof that the
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`priority test was undisturbed by PowerOasis. POR at 14-15. The Board failed to
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`respond to the point. Indeed, Technology Licensing cites to PowerOasis and
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`explains that the test under both cases was whether the claim of the later patent was
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`supported by the disclosure of the earlier patent. Technology Licensing, 545 F.3d at
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`1328 (“As in this case, the issue then before the [PowerOasis] trial court was
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`whether the earlier written description provided sufficient support for the asserted
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`claims.”).
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`The Board’s own prior decisions contradict the misreading of PowerOasis
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`here. See, e.g., Decision on Appeal in Reex. Nos. 90/006,563, 90/006,698, at 43-45
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`(rejecting test based on comparing “apparent definitions of ‘programming’ into the
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`two specifications . . .”).
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`6
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`Patent No.: 8,559,635
`V. The Board Disregarded Disclosure in the ’490 Patent Supporting
`“Programming” as Defined in the ’635 Patent.
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`A. The Board Surreptitiously Advanced a Theory of Specification
`Disclaimer to Ignore Relevant Disclosure in the ’490 Patent.
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`
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`The Board found that the definition of “programming” in the ’635 Patent as
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`“everything that is transmitted electronically” was not supported by the ’490
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`Patent’s disclosure of programming as broadly including “other electronic
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`transmissions” and other specific disclosures of programming. Compare ’635
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`Patent, 6:31-34, with ’490 Patent, 3:51-56; see FWD at 10. The Board inexplicably
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`determined that the “other electronic transmissions” disclosed in the ’490 Patent
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`were restricted to “single channel, single medium” programming and, further, that
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`the other disclosed examples of programming were subject to the same disclaimer.
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`FWD at 10.
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`
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`The Board’s act of reading out the various disclosures of programming in
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`the ’490 Patent and only recognizing “single channel, single medium”
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`programming is a sub silentio application of the principle of specification
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`disclaimer. See Phillips v. AWH Corp., 415 F.3d 1303, 1316-17 (Fed. Cir. 2005).
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`Specification disclaimer must reflect an intentional disclaimer of subject matter
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`that is a clear and unequivocal. Id.; see Astrazeneca AB v. Mutual Pharm. Co., Inc.
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`384 F.3d 1333, 1339-1340 (Fed. Cir. 2004) (explaining that a “clear disavowal” is
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`required). The Board makes no showing of an intentional disavowal.
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`7
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`Patent No.: 8,559,635
`The explicit disclosure in the ’490 Patent of examples of programming other
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`
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`than “single channel, single medium” defeats any theory of disavowal. In fact, the
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`Board has previously recognized that the ’490 Patent discloses more than single
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`channel, single medium programming. See Institution Decision, IPR2014-01533,
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`Paper 7, at 14-15 (discussing French Chef example with multiple channels and
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`multiple media (TV show, printed recipe)); Final Written Decision, IPR2014-
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`01533, Paper 60, at 11-12 (finding written description support back to 1981
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`specification).
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`B. The Priority Inquiry is Conducted as of 1981, not 1987.
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`The Board justifies denial of priority because “the term ‘programming’ . . .
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`meant something different in 1987 than it did in 1981, because it grew to
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`encompass many different types of . . . programming not contemplated in 1981.”
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`FWD at 11. The statement is legally defective and factually unsupported.
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`The conventional understanding of “programming” in 1987 is immaterial to
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`the priority inquiry which is conducted as of the date of the earlier specification,
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`1981. Thus, the ordinary and customary meaning in 1987 is irrelevant. The Board
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`also fails to provide any specific example of a type of programming available in
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`1987 but not 1981.
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`8
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`Patent No.: 8,559,635
`C. The Board Ignored Disclosure in the ’490 Patent and Other Evidence
`Showing Support for “Programming.”
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`The Board improperly restricted programming in the ’490 Patent to “single
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`channel and a single medium.” FWD at 12. This reading ignored and contradicts
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`the evidence. The ’490 Patent describes multimedia programmming
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`incorporating live video and presentation material. POR at 17 (quoting ’490 Patent,
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`3:48-60: “Multimedia presentations may be co-ordinated”). The patent describes
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`multi-channel programming that may be delivered in multiple fashions. POR at
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`17 (citing ’490 Patent, 3:3-41: “programming may be delivered . . . by any
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`means including broadcast, hard-wire, and manual means. The transmission
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`facility may transmit a single channel or multiple channels of programing.”)
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`(emphasis added). The French Chef example provides for the delivery of a printed
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`recipe (one medium) and the TV show (a different medium). That example also
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`has multiple channels (TV show on one channel, recipe on another channel). See
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`POR at 16-18.
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`VI. Priority Support Exists in the ’490 Patent for “Unaccompanied by Any
`Non-Digital Information Transmission”
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`
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`The Final Written Decision misapprehends the specification’s examples of
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`“encrypted digital information transmissions unaccompanied by any non-digital
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`information.” The Board also fails to apply the applicable law on negative
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`limitations.
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`9
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`Case No.: IPR2016-01520
`Patent No.: 8,559,635
`A. The Board Applies an Incorrect Legal Standard to the ’490 Patent’s
`Disclosure of a Digital Information Transmission Without Any
`Analog Information
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`
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`The Board concedes that the ’490 Patent discloses that the receiver station
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`“tune[s] to the appropriate channel to receive the encoded digital recipe” on “a
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`separate channel” in the French Chef example. See POR at 22-23 (citing ’490
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`Patent, 20:32-38, Fig. 6D); FWD at 17-18. That example discloses a digital
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`information transmission that is not appended to any non-digital information such
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`as analog information.
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`
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`Still the Board finds there is no support for the all-digital information
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`transmission: “we continue to determine that the ’490 Patent fails to describe,
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`expressly or inherently [that] any non-digital information is prohibited from that
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`transmission.” FWD at 14 (emphasis added). The case law does not require the
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`specification to “prohibit” subject matter in order to provide § 112 support for a
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`negative limitation. As PMC explained in its Patent Owner Response, written
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`description support is satisfied if the specification discloses alternative features or
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`suggests a reason to exclude. Both are satisfied here. POR at 41-42.
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`Rather than considering the objective disclosure of the ’490 Patent based on
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`controlling case law, the Final Written Decision engages in guesswork. The Board
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`states: “More likely, . . . the [encrypted digital] recipe would be received on a
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`conventional [analog] cable channel.” FWD at 18 (emphasis added). The Board
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`10
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`Patent No.: 8,559,635
`provides no rationale for why the recipe “would be” “received on a conventional
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`cable television channel, albeit different from the one on which the television
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`program is received.” FWD at 18. The ’490 Patent does not include the language
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`injected by the Board and further fails to include any language that suggests or
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`leads to this interpretation. Such mere speculation cannot rewrite what the
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`specification actually discloses.2 The objective disclosure of the specification to the
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`person of skill is controlling, whereas extrinsic, subjective conjecture about what
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`modifications to the disclosure a person of skill allegedly “would have understood”
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`or “would have considered” is to be disregarded. See Personal Web Techs., LLC v.
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`Apple, Inc., 848 F.3d 987, 993-94 (Fed. Cir. 2017) (rejecting analysis of what
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`POSITA “would have understood”); Polaris Industries, Inc. v. Arctic Cat, Inc., 882
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`F.3d 1056, 1068-69 (Fed. Cir. 2018) (rejecting analysis of “subjective preferences”
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`of POSITA and what she “would have done”); Nidec Motor Corporation v.
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`Zhongshan Broad Ocean Motor Co. Ltd, 851 F.3d 1270, 1274 (Fed. Cir. 2017)
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`(rejecting analysis on what POSITA might envision).
`
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`2 If the encrypted digital recipe was received on a conventional cable television channel, as the
`Board deems more likely, Figure 6D would have a TV signal decoder (see Figure 2A) placed at
`the output of the cable converter box 222 in order to extract the digital recipe data from the
`analog TV signal before the recipe is sent to printer 221. But that is not the case. PMC’s expert
`Dr. Weaver made this point (POR at 35-37, citing Weaver Decl., Ex. 2023, ¶¶184-185, 213), but
`the Final Written Decision ignored it.
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`11
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`Case No.: IPR2016-01520
`Patent No.: 8,559,635
`B. The Board’s Finding is Based on a Misunderstanding of the term
`“Transmission” as used in the ’490 and ’635 Patents.
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`
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`As set forth in the ’490 specification and echoed in the ’635 specification, a
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`multi-channel cable transmission conduit allows for separate and discrete
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`transmissions on separate carrier frequencies that do not interfere with one another.
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`See, e.g, ’490 Patent, Fig. 1,18: 49-56, 4:22-30. In instances in which it is
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`necessary to process signals in other transmissions at additional frequencies,
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`mixers and switches of the system are reconfigured as required. The system passes
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`transmissions to a mixer, which operates with a controlled oscillator to select a
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`frequency of interest for the transmission. See, e.g., ’490 Patent, Fig. 1, 7:20-35.
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`These transmissions are discrete and thus each transmission is a separate
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`transmission. The collective transmissions do not comprise a single transmission,
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`nor do the transmissions accompany one another as they are each transmitted on
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`entirely different carrier frequencies.
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`
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`The Board states that the broadest reasonable construction of the limitation
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`“at least one encrypted digital information transmission is unaccompanied by any
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`non-digital information transmission” is “the at least one digital information
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`transmission does not include non-digital information such as analog
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`information.” FWD at 13-14 (emphasis added). Given this interpretation and the
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`fact that each transmission of information is discrete and is transmitted on a
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`different carrier frequency, the digital information transmissions provided in the
`12
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`Patent No.: 8,559,635
`’490 specification (e.g., the digital recipe transmission in the French Chef example
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`of Fig. 6D; the digital news transmission in the Wall Street Week example of Fig.
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`6C) do not include and are not accompanied by non-digital information. Any
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`non-digital information transmission would necessarily comprise an entirely
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`separate transmission.
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`
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`Indeed, the “primary embodiment” noted by the Board in fact describes an
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`only digital transmission. FWD at 18; POR at 36-37. The example process
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`discloses receiving the recipe as a standalone transmission. POR at 37, citing ’490
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`Patent, 20:47-50 (“When the transmission of the recipe is received, box 222,
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`transfers the transmission to decrypter, 224, for decryption and thence to printer,
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`221, for printing.”). There is no disclosure of non-digital content being appended to
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`the recipe transmission, accompanying the recipe transmission, or being included
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`in the digital recipe transmission, which the Board recognized takes place on a
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`channel “different from the one on which the television program is received.”
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`FWD at 18. The “incoming encrypted recipe” is received “on the appropriate
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`channel” and “in encoded digital form.” POR at 35-37; ’490 Patent, 20:35-43.
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`VII. Conclusion
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`Patent Owner respectfully requests that the Board grant this request for
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`rehearing.
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`13
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`Dated: March 19, 2018
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`Case No.: IPR2016-01520
`Patent No.: 8,559,635
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`Respectfully submitted,
`
`/Stephen T. Schreiner/
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`14
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a copy of this Request for Rehearing was
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`Case No.: IPR2016-01520
`Patent No.: 8,559,635
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`electronically served on:
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`marc.sernel@kirkland.com
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`joel.merkin@kirkland.com
`
`eugene.goryunov@kirkland.com
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`Apple-PMC-PTAB@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: March 19, 2018
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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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