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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`Petitioner
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`v.
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`UNILOC LUXEMBOURG, S.A.
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`Patent Owner
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`IPR2018-00289
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`PATENT 8,872,646
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`PATENT OWNER REQUEST FOR REHEARING
`UNER 37 C.F.R. § 42.71(D)
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE, INC.
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`Petitioner
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`v.
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`UNILOC LUXEMBOURG, S.A.
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`Patent Owner
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`IPR2018-00289
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`PATENT 8,872,646
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`PATENT OWNER REQUEST FOR REHEARING
`UNER 37 C.F.R. § 42.71(D)
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`IPR2018-00289
`U.S. Patent 8,872,646
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`In response to the Final Written Decision entered May 1, 2019 (Paper 22) and
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`pursuant to 37 CFR § 42.71(d), Patent Owner hereby respectfully request a rehearing
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`and reconsideration by the Board of its Final Written Decision in IPR2018-00289.
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`I.
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`APPLICABLE STANDARDS
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`“A party dissatisfied with a decision may file a request for rehearing, without
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`prior authorization from the Board.” 37 C.F.R. §42.71(d). “The request must
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`specifically identify all matters the party believes the Board misapprehended or
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`overlooked, and the place where each matter was previously addressed in a motion,
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`an opposition, or a reply.” Id. The Board reviews a decision for an abuse of
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`discretion. 37 C.F.R. §42.71(c).
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`II. ARGUMENT
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`A.
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`“remov[ing] the one or more glitches from the motion data”
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`The Board’s Final Written Decision does not expressly address, and hence
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`appears to have overlooked, certain positions presented in Patent Owner’s Response
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`directed to the claim language “remov[ing] the one or more glitches from the motion
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`data”. See, e.g., Paper 11 (Patent Owner Response) at 12-15.
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`The entirety of the Board’s assessment of Patent Owner’s position is
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`reproduced below:
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`Patent Owner argues that McMahan’s error modification is
`distinguishable from the claimed glitch removal. See Resp. 9–15.
`According to Patent Owner, “McMahan defines its ‘error’ as a
`value that is impossible and not an accurate reflection of motion
`because it is outside what the sensor is designed to monitor,”
`whereas the claimed glitch “refer[s] to actual motion data
`deemed to not fit the signature of human motion indicative of
`someone preparing to interface with a device.” Id. at 9–10. In
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`1
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`IPR2018-00289
`U.S. Patent 8,872,646
`addition, Patent Owner contends, McMahan’s “‘modify’ block
`308 refers to processing an erroneous output which, due to its
`impossible value, is never included as part of anything that can
`be considered motion data (and thus it cannot be removed from
`such data).” Id. at 14. We disagree with Patent Owner’s
`arguments because they rely on Patent Owner’s proposed
`“glitch” claim construction, which we decline to adopt for the
`reasons explained above.
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`Paper 22 (FWD) at 13.
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`The above block quotation incorrectly suggests that Patent Owner’s position
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`is entirely dependent upon the construction it had offered for the “glitches” term,
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`which the Board rejected. This misunderstands Patent Owner’s argument concerning
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`certain deficiencies in the Petition. The Board is directed to the entirety of the section
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`of Patent Owner’s Response addressing the limitation “remov[ing] the one or more
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`glitches from the motion data”. See, e.g., Paper 11 at 12-15.
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`Patent Owner addressed in its Response a plain reading of the surrounding
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`context for the limitation “remov[ing] the one or more glitches from the motion
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`data”. Id. Regardless of how the “glitches” term is construed, there can be no
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`question that “each ‘remov[ing]’ limitation (of claims 1, 13, and 20) derives
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`antecedent basis for the term ‘the motion data’ from a respective limitation in which
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`that term is introduced.” Id. at 13. It follows that the “remov[ing]” is performed on
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`a sample of “motion data” that must already exist, of which the “one or more
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`glitches” must be a part. The claimed “remov[ing]”, therefore, removes a part of the
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`“motion data.” Id. This plain reading of the context surrounding the “glitches” term
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`is not dependent upon a particular construction for the “glitches” term. Id.
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`2
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`IPR2018-00289
`U.S. Patent 8,872,646
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`Patent Owner distinguished this plain reading of the context surrounding the
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`“glitches” term from McMahan, the sole reference relied upon in addressing this
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`claim language. Patent Owner observed that the Petition fails to explain how the
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`only two statements from McMahan cited therein in addressing this claim language
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`allegedly maps onto the “remove” and “removing” limitations. Paper 11 at 13 (citing
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`EX1005, McMahan at 4:26-30 and 4:35-38).
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`Patent Owner further noted certain example distinctions arising from how
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`McMahan addresses what it refers to as errors. Id. at 13-15. McMahan never
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`provides errors to anything that can be considered motion data; and, instead, it only
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`provides a new and contrived value. Id. Because McMahan’s errors are never a part
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`of anything that can be considered “motion data”, it follows that those errors cannot
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`be removed from anything that can be considered “motion data”. This deficiency is
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`independent of any construction applied to the “glitches” term.
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`Patent Owner further noted in its Response that “[i]n its Institution Decision,
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`the Board argues on behalf of Petitioner that McMahan teaches ‘[w]hen an output
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`data set is modified or replaced, it no longer includes the original input.’” Id. at 14.
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`Patent Owner further observed that “[t]he Petition does not advance (and has
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`therefore waived) the argument that McMahan teaches “an output data set is
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`modified or replaced.” Id. Patent Owner further explained why “[m]odifying a single
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`‘error’ (i.e., not a ‘glitch’) before the modification is purportedly included within a
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`so-called ‘data set’ (a couplet that does not appear in McMahan or the Petition) is
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`distinguishable from ‘remov[ing] the one or more glitches from the motion data,’ as
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`recited in all challenged claims.” Id. at 15 (emphasis original).
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`3
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`The Final Written Decision does not expressly address, and thus appears to
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`have overlooked, at least the above positions previously presented in Patent Owner’s
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`IPR2018-00289
`U.S. Patent 8,872,646
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`Response.
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`II. CONCLUSION
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`In view of the foregoing, Patent Owner respectfully requests that the Board
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`grant a rehearing and reconsider its Final Written Decision.
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`Date: June 14, 2019
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`Respectfully submitted,
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`By: /s/ Brett A. Mangrum
`Brett A. Mangrum; Reg. No. 64,783
`Attorney for Patent Owner
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`4
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`IPR2018-00289
`U.S. Patent 8,872,646
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. §§ 42.6(e), the undersigned certifies that service of the
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`foregoing was made on Petitioner via Patent Review Processing System (PRPS)
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`and/or email as detailed below:
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`Andrew S. Ehmke
`andy.ehmke.ipr@haynesboone.com
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`Thomas W. Kelton
`thomas.kelton.ipr@haynesboone.com
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`Calmann J. Clements
`calmann.clements.ipr@haynesboone.com
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`Date: June 14, 2019
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`Respectfully submitted,
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`By: /s/ Brett A. Mangrum
`Brett A. Mangrum; Reg. No. 64,783
`Attorney for Patent Owner
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`i
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