Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
`Paper No. 24
`Entered: July 9, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,1
`Patent Owner.
`
`____________
`
`Case IPR2018-00294
`Patent 6,736,759 B1
`____________
`
`
`
`
`Before SALLY C. MEDLEY, JOHN F. HORVATH, and
`SEAN P. O’HANLON, Administrative Patent Judges.
`
`O’HANLON, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`1 At the time the petition was filed, Uniloc Luxembourg S.A. was the patent
`owner.
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`Paper No. 24
`Entered: July 9, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,1
`Patent Owner.
`
`____________
`
`Case IPR2018-00294
`Patent 6,736,759 B1
`____________
`
`
`
`
`Before SALLY C. MEDLEY, JOHN F. HORVATH, and
`SEAN P. O’HANLON, Administrative Patent Judges.
`
`O’HANLON, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`1 At the time the petition was filed, Uniloc Luxembourg S.A. was the patent
`owner.
`
`
`
`
`
`IPR2018-00294
`Patent 6,736,759 B1
`
`
`I. INTRODUCTION
`On April 12, 2019, the Board issued a Final Written Decision in this
`
`proceeding. Paper 20 (“Decision” or “Final Dec.”). In the Decision, we
`determined that Petitioner had shown by a preponderance of the evidence
`that claims 1–32 of U.S. Patent No. 6,736,759 B1 (Ex. 1001, “the ’759
`patent”) were unpatentable. Id. at 68.
`
`On May 13, 2019, Patent Owner, Uniloc 2017 LLC, timely filed a
`Request for Reconsideration of our Decision under 37 C.F.R. § 42.71(d).
`Paper 21 (“Request” or “Req. Reh’g”). The asserted grounds for rehearing
`relate to the Board’s construction of “displaying real-time data.” For the
`reasons discussed below, we are not persuaded that we erred in the Decision,
`and deny Patent Owner’s Request for Rehearing.
`
`II. LEGAL STANDARD
`A request for rehearing “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). The burden of showing a decision should be modified
`on a request for rehearing lies with the party challenging the decision. Id.
`
`III. ANALYSIS
`In the Decision, we construed “displaying real time data” consistent
`
`with the construction issued by the U.S. Court of Appeals for the Federal
`Circuit, our reviewing court, in Paragon Solutions, LLC v. Timex Corp., 566
`F.3d 1075 (Fed. Cir. 2009) (Ex. 1023) to mean “displaying data without
`intentional delay, given the processing limitations of the system and the time
`
`2
`
`
`
`IPR2018-00294
`Patent 6,736,759 B1
`
`required to accurately measure the data.” Final Dec. 10; see also Ex. 1023,
`14. We further determined that, because “our review of the ’759 patent and
`the evidence of record does not reveal a broader construction, . . . the
`Federal Circuit’s construction comports with not only the Phillips standard,
`but also the broadest reasonable interpretation.”2 Final Dec. 10.
`
`Patent Owner contends that we “misapplie[d] the Federal Circuit
`construction,” arguing that “giving the processing limitations,” as used in the
`Federal Circuit’s construction, excludes any system processing other than
`the processing of electronic positioning and physiological data. Req. Reh’g
`1–3. Specifically, Patent Owner argues that “[i]ntentional delay would arise,
`for example, by dedicating additional process cycles to servicing other
`sensors that provide data other than that ‘provided by said electronic
`positioning device and said physiological monitor.’ Such unrelated
`processing is not fairly characterized as . . . ‘processing limitations of the
`system.’” Id. at 2. Patent Owner argues that the data scanned and stored in
`Fry’s3 processing blocks 350 and 354 is not electronic positioning or
`physiological data, and that the processing illustrated by these blocks
`therefore constitutes “intentional delay” between obtaining and displaying
`electronic positioning and physiological data. Id. at 3–6. Patent Owner also
`argues that the processing illustrated by Fry’s processing block 350 is not
`optional, but instead occurs every cycle of the software routine. Id. at 6–8.
`Thus, Patent Owner’s Request is premised on the notion that “displaying
`
`
`2 This Petition was filed before the effective date of the amendment to
`37 C.F.R. § 42.100 that changed the claim construction standard applied in
`inter partes reviews.
`3 US 6,002,982 (Ex. 1004, “Fry”).
`
`3
`
`
`
`IPR2018-00294
`Patent 6,736,759 B1
`
`real-time data” precludes any system processing steps occurring between the
`processing and displaying of electronic positioning and physiological data.
`We disagree with Patent Owner’s interpretation of the Federal Circuit’s
`construction of “displaying real-time data.”
`
`We noted in the Decision that, “when construing ‘displaying real-time
`data,’ the Federal Circuit first considered the Specification and determined
`that ‘the [S]pecification supports a construction of “real-time” in this case
`that precludes intentionally delaying the display of data by storing it for
`later review.’” Final Dec. 18 (citing Ex. 1023, 12). We further noted that
`the Federal Circuit also considered several “definitions of ‘real-time’ in
`[various] technical dictionaries [that] suggest that a real-time process cannot
`involve intentional delay or storage for later processing.” Id. at 19 (citing
`Ex. 1023, 14). These definitions considered by the Federal Circuit define
`“real-time” processes as processes that are performed “during the actual time
`that the related physical process transpires,” “as events occur and the
`information is generated, as opposed to batch processing,” and “without any
`delay.” Ex. 1023, 14 (citations omitted). The Federal Circuit concluded by
`determining:
`[W]hile the data need not be displayed instantaneously, it must
`be displayed without any intentional delay, taking into account
`the processing limitations of the system and the time required to
`accurately measure the data. We therefore construe “displaying
`real-time data,” as used in the claims of this case, as “displaying
`data without intentional delay, given the processing limitations
`of the system and the time required to accurately measure the
`data.”
`Id. (emphases added).
`
`4
`
`
`
`IPR2018-00294
`Patent 6,736,759 B1
`
`We discern no support for Patent Owner’s contention that “given the
`
`processing limitations of the system,” as used in the Federal Circuit’s
`construction, refers only to processing limitations associated with obtaining
`and displaying the electronic positioning and physiological data. See Req.
`Reh’g 2.4 Rather, because the Court repeatedly referenced displaying the
`positioning and physiological data while the activity is taking place, as
`opposed to imparting a time delay to collect and process the data in batches,
`or waiting until the activity is complete to process the data, we interpret
`“given the processing limitations of the system” to include taking into
`account the processing limitations required to process all of the data
`gathered and displayed by the system, rather than only the specifically-
`recited electronic positioning and physiological data.
`
`Patent Owner argues that Fry’s processing “block 350 requires
`dedicating additional process cycles to scanning for data.” Id. at 4. Fry
`discloses: “At block 350, less time-critical sensors are simply scanned by
`the controller. These include internal electronic compass heading, weather
`sensors and so forth, which do not change on a time-critical or even periodic
`basis. Thus, in these cases, the sensors are simply scanned after time-critical
`interrupts are first serviced.” Ex. 1004, 6:28–33. Thus, any “delay”
`imparted by Fry’s system by scanning its less time-critical sensors is due to
`the processing limitations of Fry’s system; if Fry’s system could obtain the
`information from these sensors instantaneously, there would be no delay.
`
`We additionally note that the claims of the ’759 patent use the open-
`ended “comprising” transitional phrase, allowing for elements in addition to
`
`
`4 Notably, Patent Owner does not provide a citation to the record or any
`other evidence in support of its interpretation.
`
`5
`
`
`
`IPR2018-00294
`Patent 6,736,759 B1
`
`those specifically recited and not precluding the processing and displaying
`of other information in addition to the specifically-recited electronic
`positioning and physiological data, such as the additional sensor information
`scanned in Fry’s system at processing block 350.
`
`IV. CONCLUSION
`For the reasons discussed above, we deny Patent Owner’s Request for
`
`Rehearing because we determine that Patent Owner has not met its burden to
`show that in the Final Written Decision, the panel misapprehended or
`overlooked any matter.
`
`V. ORDER
`It is ORDERED that Petitioner’s Request for Rehearing is denied.
`
`
`
`6
`
`
`
`IPR2018-00294
`Patent 6,736,759 B1
`
`For PETITIONER:
`Adam P. Seitz
`Paul R. Hart
`Chris R. Schmidt
`ERISE IP, P.A.
`adam.seitz@eriseip.com
`paul.hart@eriseip.com
`chris.schmidt@eriseip.com
`ptab@eriseip.com
`
`For PATENT OWNER:
`Brett Mangrum
`Ryan Loveless
`James Etheridge
`Jeffrey Huang
`Etheridge Law Group
`brett@etheridgelaw.com
`ryan@etheridgelaw.com
`jim@etheridgelaw.com
`jeff@etheridgelaw.com
`
`Sean D. Burdick
`Uniloc USA, Inc.
`sean.burdick@unilocusa.com
`
`7
`
`
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