`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`APPLE INC., SAMSUNG ELECTRONICS AMERICA, INC.,
`HTC CORP., HTC AMERICA, INC., and LG ELECTRONICS, INC.,
`
`
`Petitioner
`
`v.
`
`UNILOC 2017 LLC,
`
`Patent Owner
`
`
`
`IPR2018-00424
`PATENT 7,881,902 B1
`
`
`
`
`
`
`
`
`
`
`
`PATENT OWNER’S REQUEST FOR
`REHEARING UNDER 37 C.F.R. § 42.71(d)
`
`
`
`
`
`IPR2018-00424
`U.S. Patent 7,881,902 B1
`
`In response to the Final Written Decision entered July 16, 2019 (Paper 21,
`
`“FWD”) and pursuant to 37 CFR § 42.71(d), Patent Owner hereby respectfully
`
`requests a rehearing and reconsideration by the Patent Trial and Appeal Board of its
`
`Final Written Decision.
`
`I.
`
`APPLICABLE STANDARDS
`
`“A party dissatisfied with a decision may file a request for rehearing, without
`
`prior authorization from the Board.” 37 C.F.R. §42.71(d). “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.” Id. The Board reviews a decision for an abuse of
`
`discretion. 37 C.F.R. §42.71(c).
`
`II. ARGUMENT
`
`The Board appears to have misunderstood argument and evidence presented
`
`during trial explaining why Petitioner failed to meet its burden to prove Fabio’s
`
`validation interval TV maps onto the “cadence window” term. See Paper 11
`
`(“POR”), 13–15 (distinguishing Fabio’s retrospective validation scheme); Paper 15
`
`(“POSR”), 1–5; see also Ex. 1006 (Fabio), Fig. 6, 4:22-40. The misunderstanding
`
`primarily concerns why Fabio’s validation interval TV is not “a window of time
`
`since a last step was counted”, as required by Petitioner’s construction for the
`
`“cadence window” term. Id. Fabio defines its TV as necessarily starting before the
`
`last step is counted. Id.
`
`1
`
`
`
`IPR2018-00424
`U.S. Patent 7,881,902 B1
`
`To assist in understanding the key timing aspects that underscore this
`
`patentable distinction, Uniloc’s briefing during trial provided certain annotations to
`
`Fabio’s Figure 6 (reproduced below):
`
`See POSR 3 (annotating and discussing Fig. 6 of Fabio, Ex. 1006). Fabio states that
`
`because TR(K) falls within the interval shown as TV, as shown in Figure 6, the last
`
`step recognized (TR(K-1)) is validated and hence counted. Ex. 1006, Fig. 6, 4:22–
`
`
`
`40.
`
`At least in this respect, Fabio’s validation scheme is retrospective in that it is
`
`used to validate only the last step. Id. Fabio’s retrospective validation scheme, when
`
`properly understood, is distinguishable from the “cadence window” limitations for
`
`the reasons articulated by Uniloc during trial. See, e.g., POSR 1-5 (distinguishing
`
`Fabio’s retrospective validation scheme); POR 13–15.
`
`The Board appears to have been misled by Petitioner into adopting an
`
`incorrect understanding of Fabio. See, e.g., FWD 47–49. Under Petitioner’s incorrect
`
`interpretation of Fabio, the step being validated by a given TV is not the last step (as
`
`2
`
`
`
`IPR2018-00424
`U.S. Patent 7,881,902 B1
`
`disclosed) but rather the current step. From the perspective of Fabio’s Figure 6
`
`(copied above), Petitioner argued that step TR(K) is itself validated and counted if
`
`and when it occurs within the validation interval TV shown in Figure 6. Id. The
`
`Board appears to have misunderstood Fabio, and the argument and evidence
`
`concerning the same, in adopting such an interpretation. Id.
`
`Petitioner’s flawed interpretation ignores the undisputed and demonstrable
`
`fact that Fabio mathematically defines TV with respect to the instant of recognition
`
`of the immediately preceding step. See POR 13–15 (distinguishing Fabio’s
`
`retrospective validation scheme); POSR 1–5; see also Ex. 1006, Fig. 6, 4:22-40.
`
`Applying Petitioner’s flawed interpretation to the TV definition, at least the first and
`
`second steps (shown in Figure 6 as TR(1) and TR(2), respectively) would necessarily
`
`both be excluded from the total count of valid steps. The exclusion would necessarily
`
`occur even if the duration that lapsed between the first step TR(1) and the second
`
`step TR(2) is substantially homogeneous with other steps that are counted as valid,
`
`as shown in Figure 6 of Fabio. This result is inconsistent with the express disclosure
`
`in Fabio and its focus on a retrospective analysis that considers the immediately
`
`preceding step.
`
`The flaw in the interpretation adopted by the Board is best explained by
`
`reference to the TV definition itself. Ex. 1006, 4:40. Among other requirements, the
`
`equations defining the start and stop times for TV both depend on what Fabio refers
`
`to as TR(K-1), which is the instant the preceding step was recognized. Id. The value
`
`TR(K-1) cannot be determined for the first step TR(1) because there is no
`
`immediately preceding step. Accordingly, applying the understanding the Board
`
`3
`
`
`
`IPR2018-00424
`U.S. Patent 7,881,902 B1
`
`appears to have adopted, there would be no basis to calculate the validation interval
`
`TV ostensibly used to determine whether the first step TR(1) itself should be counted
`
`as valid. As a result, the first step TR(1) would always be excluded from the count
`
`of valid steps.
`
`More importantly, a similar exclusion would also apply to the second step
`
`TR(2) under Petitioner’s interpretation. See POR 13–15 (distinguishing Fabio’s
`
`retrospective validation scheme); POSR 1–5; see also Ex. 1006, Fig. 6, 4:22-40. This
`
`is at least because the equations for calculating the start and stop times for TV both
`
`further depend on what Fabio refers to as ΔTK-1, which is defined as the duration
`
`since an immediately preceding step (i.e., the duration between TR(K-2) and TR(K-
`
`1) of Figure 6). Id. This value is undefined for the first step TR(1) because there is
`
`no preceding step from which a duration can be calculated. Consequently, it would
`
`not be possible to determine whether the second step TR(2) itself falls within a
`
`validation interval TV under Petitioner’s interpretation.
`
`This flaw resulting from Petitioner’s interpretation and applicable to both the
`
`first and second steps (TR(1) and TR(2)) is particularly glaring given (1) the
`
`significance placed in Fabio on accurately counting the total number of steps, (2) the
`
`fact that two distinct steps and a measured duration between them have been
`
`recognized by this point, and (3), the fact that the Fabio counting scheme purports
`
`to be a step-to-step consideration. See POR 13–15 (distinguishing Fabio’s
`
`retrospective validation scheme); POSR 1–5; see also Ex. 1006, 3:1, 14–15.
`
`The flaw resulting from Petitioner’s interpretation does not exist when Fabio
`
`is correctly understood. This is because, under the actual scheme set forth in Fabio,
`
`4
`
`
`
`IPR2018-00424
`U.S. Patent 7,881,902 B1
`
`a retrospective analysis is applied once a sequence of steps has been established. For
`
`example, a proper understanding of Fabio reveals that the second step TR(2) can be
`
`retrospectively validated, and hence counted, when the third step is recognized
`
`within its respective TV. Id.
`
`The possible inclusion of the second step TR(2) within the count of valid steps
`
`may be best explained by borrowing from the illustrated TV shown in Figure 6. If
`
`the first, second, and third steps in a sequence are represented as TR(K-2), TR(K-1),
`
`and TR(K), respectively, then the second step would be retrospectively validated and
`
`counted—and hence not excluded—if and when the third step occurs within the TV
`
`shown in Figure 6. Id. While Fabio contemplates retrospectively validating the
`
`second step TR(2) for inclusion within the total count of valid steps, based on the
`
`timing of the third step, this is rendered impossible and necessarily excluded under
`
`Petitioner’s flawed interpretation.
`
`
`
`The Board also appears to have misunderstood the statement in Fabio that
`
`expressly distinguishes between the current step recognized and the last step
`
`recognized as follows: “the last step recognized is validated if the instant of
`
`recognition of the current step ….” FWD 48–49 (quoting Ex. 1006, 4:35–36)
`
`(emphasis altered). Fabio introduces this statement with the phrase “more precisely”.
`
`Ex. 1006 (Fabio), 4:35-36. The Board’s Final Written Decision appears to have
`
`interpreted the last step recognized and the current step recognized to be one and the
`
`same in this context. FWD 48–49. Fabio would not have explicitly distinguished
`
`these two different steps as last and current, and characterized such a distinction as
`
`5
`
`
`
`IPR2018-00424
`U.S. Patent 7,881,902 B1
`
`using “more precise[]” language, if the disclosed validation pertained to the current
`
`step and not the last step as disclosed.
`
`For the foregoing reasons, the Board appears to have misunderstood that
`
`Fabio’s validation scheme is retrospective in nature and overlooked argument and
`
`evidence directed to the same conclusion. Fabio’s time TS1 suffers from this same
`
`deficiency at least because Fabio’s use of TS1 similarly precedes the step validation
`
`procedure for the current step and only determines whether to count the previous
`
`step. POR 15–17; POSR 5–7. When properly understood, Fabio’s retrospective
`
`validation scheme is distinguishable from the “cadence window” limitations, for the
`
`reasons articulated by Uniloc during trial. See, e.g., POR 13–15; POSR 1–5.
`
`II. CONCLUSION
`
`In view of the foregoing, Patent Owner respectfully requests that the Board
`
`grant a rehearing and reconsider its Final Written Decision.
`
`
`
`Date: August 15, 2019
`
`
`
`
`
`Respectfully submitted,
`
`By: /s/ Brett A. Mangrum
`Brett A. Mangrum; Reg. No. 64,783
`Attorney for Patent Owner
`
`6
`
`
`
`IPR2018-00424
`U.S. Patent 7,881,902 B1
`
`
`CERTIFICATE OF SERVICE
`
`
`
`The undersigned certifies that the foregoing was served electronically on
`
`counsel of record for Petitioner.
`
`Date: August 15, 2019
`
`
`
`
`
`Respectfully submitted,
`
`
`
`By: /s/ Brett A. Mangrum
`Brett A. Mangrum; Reg. No. 64,783
`Attorney for Patent Owner
`
`i
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
