Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
`Paper 12
`Entered: February 25, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS INC.,
`Petitioner,
`
`v.
`
`MULTIMEDIA CONTENT MANAGEMENT LLC,
`Patent Owner.
`____________
`
`Case IPR2017-01934
`Patent 8,799,468 B2
`____________
`
`Before PATRICK M. BOUCHER, MICHELLE N. WORMMEESTER, and
`MATTHEW J. McNEILL, Administrative Patent Judges.
`
`McNEILL, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`Unified Patents Inc. (“Petitioner”) requests rehearing of our Decision
`(Paper 10, “Decision” or “Dec.”) denying institution of inter partes review
`of all challenged claims and all grounds in the Petition (Paper 2, “Pet.”).
`Paper 11 (“Request” or “Req. Reh’g”). For the reasons set forth below, the
`Board denies Petitioner’s Request.
`
`
`571-272-7822
`
`
`
`
`
`
`Paper 12
`Entered: February 25, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS INC.,
`Petitioner,
`
`v.
`
`MULTIMEDIA CONTENT MANAGEMENT LLC,
`Patent Owner.
`____________
`
`Case IPR2017-01934
`Patent 8,799,468 B2
`____________
`
`Before PATRICK M. BOUCHER, MICHELLE N. WORMMEESTER, and
`MATTHEW J. McNEILL, Administrative Patent Judges.
`
`McNEILL, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`Unified Patents Inc. (“Petitioner”) requests rehearing of our Decision
`(Paper 10, “Decision” or “Dec.”) denying institution of inter partes review
`of all challenged claims and all grounds in the Petition (Paper 2, “Pet.”).
`Paper 11 (“Request” or “Req. Reh’g”). For the reasons set forth below, the
`Board denies Petitioner’s Request.
`
`
`
`IPR2017-01934
`Patent 8,799,468 B2
`
`
`I. BACKGROUND
`
`Petitioner presented two grounds in the Petition. Ground one
`challenges claims 1‒5, 9, 12, 19, 23‒27, and 33 of U.S. Patent
`No. 8,799,468 B2 (“the ’468 patent”) as obvious over Freund.1 Ground two
`challenges claims 1‒3, 11, 13, 23‒25, 32, and 35 of the ’468 patent as
`obvious over Spusta.2 We denied institution, concluding that Petitioner did
`not demonstrate a reasonable likelihood of prevailing as to either ground.
`Petitioner seeks rehearing of our denial of ground one challenging
`claims 1‒5, 9, 12, 19, 23‒27, and 33 as obvious over Freund. Req. Reh’g
`1‒2. On request for rehearing, the burden of showing a decision on whether
`to institute trial should be modified lies with the party challenging the
`decision. 37 C.F.R. § 42.71(d). “When rehearing a decision on petition, a
`panel will review the decision for an abuse of discretion.” 37 C.F.R.
`§ 42.71(c). “The request must specifically identify all matters the party
`believes the Board misapprehended or overlooked, and the place where each
`matter was previously addressed in a motion, an opposition, or a reply.”
`37 C.F.R. § 42.71(d). For reasons discussed below, we decline to modify
`the Decision. Thus, Petitioner’s Request is denied.
`
`II. DISCUSSION
`
`Petitioner argues in the Request that the Board erred by finding that
`Petitioner did not show that the prior art taught a gateway unit receiving
`controller instructions from a controller node through a service provider
`
`
`1 U.S. Patent No. 5,987,611.
`2 U.S. Patent Application Publication No. 2002/0032870 A1.
`
`2
`
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`IPR2017-01934
`Patent 8,799,468 B2
`
`network. Req. Reh’g 1 (citing Dec. 7‒13). In particular, Petitioner argues
`the Petition cited a prior art passage disclosing controller instructions
`received through a service provider network (Pet. 29, 39‒40 (citing
`Ex. 1004, 22:22‒31)) and expert testimony supporting this interpretation of
`the cited prior art reference (Ex. 1003 ¶¶ 99, 117). Req. Reh’g 1.
`Claim 1 recites, in relevant part, “[a] system for regulating access to a
`service provider network, the system comprising: a controller node coupled
`to the service provider network . . . and the plurality of gateway units.”
`Claim 1 further recites that each of the plurality of gateway units comprises
`“a second network interface coupled to the service provider network and
`configured to receive the controller instructions from the controller node
`through the service provider network.”
`Petitioner proposed construing the term “service provider network” to
`mean “a network over which content is delivered.” Pet. 13. Patent Owner
`proposed construing the term “service provider network” to mean “a
`network that is operated or controlled by a service provider to provide
`regulated access to content delivery services for subscribers. The service
`provider network does not include subscriber equipment or a subscriber
`network.” Prelim. Resp. 4.
`In the Decision, we did not construe expressly the term “service
`provider network,” but addressed aspects of Petitioner’s proposed
`construction. Dec. 9. In particular, we found Freund discloses client 310
`receiving rules (the asserted “controller instructions”) from supervisor 323
`(the asserted “controller node”) over LAN 320, instead of Internet 340. Id.
`(citing Ex. 1004, Fig. 3A, 14:52‒67, 15:1‒11). As noted in our Decision,
`LAN 320 is not part of Internet 340 because LAN 320 is separated from
`
`3
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`IPR2017-01934
`Patent 8,799,468 B2
`
`Internet 340 by firewall 330. Id. at 9‒10.
`As noted in the Decision, Petitioner also argued that if LAN 320 is not
`part of Internet 340, an ordinarily skilled artisan would have been motivated
`to connect supervisor 323 to Internet 340 in situations where the system is
`used by an organization with a network implemented in widely dispersed
`geographic locations, each with its own LAN. Dec. 11 (citing Pet. 31). In
`the Decision, we found this reasoning unpersuasive because it does not
`account for Freund’s embodiment discussed in Figure 3B, wherein the
`supervisor is separated from client 310 by a LAN, POP 320a, and Internet
`340. Id. at 11‒12.
`In the Request, Petitioner argues the Petition cites Freund’s
`embodiment discussed in Figure 3B and that in this embodiment, the client
`receives rules (the asserted “controller instructions”) from the supervisor
`over the Internet. Req. Reh’g 5‒6.
`Petitioner has not persuaded us that we misapprehended or overlooked
`any arguments or evidence in the Petition, or that our determinations based
`on the preliminary record were an abuse of discretion. First, Petitioner did
`not fully develop the argument it now makes, instead relying on conclusory
`statements and identifying portions or figures of the prior art without
`sufficient explanation. In particular, Petitioner cited three embodiments: the
`embodiment shown in Freund Figure 3A (see, e.g., Pet. 20‒22 (claim 1[b])),
`the embodiment shown in Freund Figure 3B (see, e.g., Pet. 39‒40 (claim
`1[f])), and a hypothetical embodiment employing a widely dispersed
`network (see, e.g., Pet. 31 (claim 1[c])). For certain limitations, Petitioner
`cites only the embodiment shown in Figure 3A. See, e.g., claim 1[a], Pet.
`20‒22. But Petitioner cites all three embodiments, including the
`
`4
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`IPR2017-01934
`Patent 8,799,468 B2
`
`hypothetical embodiment, in support of other limitations without explaining
`how these embodiments would be combined, if at all. See, e.g., claim 1[c],
`Pet. 27‒31. Petitioner did not sufficiently explain how to combine these
`three embodiments in a way that teaches or suggests all of the limitations of
`claim 1.
`Second, even had Petitioner’s explanation been sufficient in the
`Petition, Petitioner relies on an improper construction of the term “service
`provider network.” Petitioner proposes construing “service provider
`network” to mean “a network over which content is delivered.” Pet. 13.
`Petitioner argues the specification does not define the term “service provider
`network,” but discusses service providers delivering content over the
`Internet. Id. at 14. Petitioner argues the Internet and a local area network
`are examples of a “service provider network” and proposes this construction
`to cover such examples. Id. at 14.
`As noted by Petitioner, “service provider network” is not defined in
`the specification of the ’468 patent. However, the ’468 patent teaches “the
`Internet is composed of several components including, for example, content
`providers for generating content; service providers for delivering content;
`subscriber terminals for receiving, displaying and playing content; and
`various network elements between service providers and subscribers for
`aiding in the distribution of content.” Ex. 1001, 1:29‒35. “Service
`providers include, for example, telephone line carriers, enterprise data
`centers, and cable television providers.” Id. at 1:35‒37. The ’468 patent
`distinguishes between service providers and subscribers, noting that
`“[s]ubscriber terminals are located at subscriber premises and include, for
`example, personal computers [and] televisions configured with modems.”
`
`5
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`IPR2017-01934
`Patent 8,799,468 B2
`
`Id. at 1:37‒39.
`The ’468 patent also discloses a network 52, for example the Internet,
`that may include a plurality of Service Preference Architecture (SPA)-
`controlled network elements 54 and non-SPA-controlled network
`elements 55. Id. at 4:57‒60. SPA-controlled network elements 54 aid in
`regulating access and distributing content through network 52. The ’468
`patent further describes Internet Control Points (ICPs) or “controller nodes.”
`Ex. 1001, 3:44‒46. ICPs regulate subscriber access to content in
`network 52. Id. at 5:15‒17. ICPs work in conjunction with SPA-controlled
`network elements 54 by generating instructions, which are transmitted over
`network 52 to gateway units 58 and SPA-controlled network elements 54,
`where the instructions are executed.
`Although the ’468 patent does not define the term “service provider
`network,” the ’468 patent consistently distinguishes between SPA-controlled
`network elements, where instructions managing content distribution are
`executed, and non-SPA-controlled network elements. See, e.g., Ex. 1001 at
`4:57‒60. SPA-controlled network elements and non-SPA-controlled
`network elements are both components of network 52, for example the
`Internet. See id. Thus, we disagree with Petitioner’s contention that the
`term “service provider network” is so broad, in light of the Specification, to
`encompass the entire Internet.
`Petitioner relies upon this overly broad interpretation of “service
`provider network” for each of the limitations discussed above. See Pet. 18‒
`46. Even if Petitioner had explained how the three identified embodiments
`were being combined, Petitioner has failed to show a reasonable likelihood
`of establishing that Freund teaches or suggests a “service provider network”
`
`6
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`IPR2017-01934
`Patent 8,799,468 B2
`
`under the broadest reasonable construction of that term.
`For these reasons, Petitioner has not persuaded us that we abused our
`discretion in our denial of the Petition.
`
`III. ORDER
`
`In consideration of the foregoing, it is hereby:
`ORDERED that Petitioner’s Request is denied.
`
`
`
`
`7
`
`
`
`IPR2017-01934
`Patent 8,799,468 B2
`
`PETITIONER
`Scott A. McKeown
`ROPES & GRAY LLP
`scott.mckeown@ropesgray.com
`
`Roshan S. Mansinghani
`UNIFIED PATENTS INC.
`roshan@unifiedpatents.com
`
`PATENT OWNER
`Jeffrey G. Toler
`Aakash S. Parekh
`TOLER LAW GROUP, PC
`jtoler@tlgiplaw.com
`aparekh@tlgiplaw.com
`
`
`8
`
`
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