`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SHOPIFY, INC., PRICELINE.COM LLC, and BOOKING.COM B.V.,
`Petitioner,
`
`v.
`
`DDR HOLDINGS, LLC,
`Patent Owner.
`____________
`
`Cases
`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`____________
`
`Record of Oral Hearing
`Held July 25, 2019
`____________
`
`Before CARL M. DEFRANCO, PATRICK M. BOUCHER, and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
`
`
`
`
`
`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`MICHAEL MCNAMARA, ESQUIRE
`Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
`One Financial Center
`Boston, MA 02111
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`LOUIS J. HOFFMAN, ESQUIRE
`Hoffman Patent Firm
`7689 East Paradise Lane
`Suite 2
`Scottsdale, AZ 85260
`
`IAN B. CROSBY, ESQUIRE
`Susman Godfrey LLP
`1201 Third Avenue
`Suite 3800
`Seattle, WA 98101
`
`
`
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, July 25,
`2019, commencing at 9:00 a.m., at the Byron G. Rogers Federal Office
`Building, 1961 Stout Street, 14th Floor, Denver, Colorado 80294.
`
`
`
`2
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`
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE BOUCHER: Please be seated. Okay, good morning. This is
`
`a consolidated trial hearing for six IPR's. Namely 2018-01008, 01009,
`01010, 01011, 01012 and 01014. Across the six IPRs, three patents are
`involved. Namely U.S. patent 8,515,825, 9,043,228 and 9,639,876. All
`three patents are owned by DDR Holdings and the original petitioner in the
`case is Shopify. Because of joinder decisions, Priceline.com and
`Booking.com are also petitioners.
`I'm Judge Boucher and appearing remotely are Judges DeFranco and
`Finamore. Judge Finamore is appearing by video and I believe Judge
`DeFranco is appearing only by audio.
`So at this time we would like the parties to introduce yourselves. If
`we can start with the Petitioner and introduce yourself at the lectern please.
`
`MR. MCNAMARA: Good morning, Your Honor. My name is
`Michael McNamara. I'm here on behalf of Shopify and petitioners. With
`me today is Adrian Kwan, Peter Snell, Sahir Surmeli, all from my office.
`For Bookings and the other petitioners who are joined is Brett Govett,
`Norton Rose and two of our clients, Uveck Nuriness and Rob Gay is here
`from the client.
`
`JUDGE BOUCHER: Okay, thank you, Mr. McNamara. And for the
`Patent Owner?
`
`MR. HOFFMAN: Good morning, Your Honor. My name is Lewis
`Hoffman of Hoffman Patent Firm appearing for Patent Owner, DDR
`Holdings, LLC. With me is Ian Crosby co-counsel from the law firm of
`Susman Godfrey and Del and Danny Ross the, our inventors.
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`JUDGE BOUCHER: Okay. Thank you. So before we begin, I just
`
`want to remind the parties that the hearing is open to the public and a full
`transcript of it will become part of the record.
`Please keep in mind that whatever is projected on the screen will not
`be viewable by the Judges who are appearing remotely but they do have
`copies of the demonstratives filed by both sides.
`So when you refer to an exhibit on the screen, please state the slide or
`exhibit number to which you are referring so that we have it complete in the
`record and so that the remote Judges can follow along.
`As you know from our trial order, each party has 60 minutes to
`present his arguments. Because the Petitioner has the burden of showing
`unpatentability of the challenged claims, the Petitioner will proceed first
`followed by the Patent Owner.
`Patent Owner -- or Petitioner may reserve time and as we indicated in
`the trial order the Patent Owner may request a brief sur-rebuttal as well.
`I just want to make sure the remotely appearing Judges can hear us
`fine. Judge Finamore, you can hear us?
`JUDGE FINAMORE: Yes.
`JUDGE BOUCHER: Okay. And, Judge DeFranco?
`JUDGE DEFRANCO: Yes, Judge.
`JUDGE BOUCHER: Okay. So Petitioner will begin and would you
`like to reserve some time?
`MR. MCNAMARA: Yes, sir. I would like to reserve 15 minutes
`please.
`JUDGE BOUCHER: Okay. I’ll just set the clock for 45 and
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`whenever you are ready you can begin.
`MR. MCNAMARA: Great. Thank you. I'm ready to start.
`JUDGE BOUCHER: Go ahead please.
`MR. MCNAMARA: All right. Your Honor, we are here today as you
`observed to talk about six different IPRs. Those IPRs are roughly sort of in
`two different groups, right.
`We have the -- what we will call the Moore IPRs which primarily
`today I think we are going to be talking about Moore for those IPRs and then
`we have the Loshin IPRs. There are three Loshin IPRs. When we get to
`those I imagine we will primarily talk about Loshin and that’s on Slide 2.
`Now if we jump to Slide 5, we tried to provide a little bit of a table of
`contents about what we are going to talk about today. And here is kind of a
`summary of what is going on with Moore.
`Now the Board in their Institution Decision agreed with Petitioner that
`all the claim elements of the DDR claims were disclosed by Moore and
`instituted and we agree with that decision.
`Patent Owner came back and argued that certain claim elements were
`missing from the references. For the independent claim, all that they argued
`was that the common overall appearance is missing and then for the
`dependent claims, they argued that certain dependent claims which really go
`to basic Internet functionality were missing.
`So we have got paying commission which has been happening in
`business for hundreds of years, organizing your page so that your catalog
`looks like the L.L. Bean catalog or any catalogs that have existed for a long
`time, and then searching on the Internet.
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`
`For Loshin, the table of contents on page six is a little bit different.
`Here DDR argues for the independent claim that the common overall
`appearance is missing but it’s the same as with Moore. But then also that
`these page pairs were disclosed by Loshin.
`And by page pairs what we mean is you have got a source web page
`and a composite web page. And that that page pair sort of aspect was
`missing from Loshin.
`And so now we will jump into Moore unless Your Honor wants to
`start somewhere else?
`JUDGE BOUCHER: No, I think Moore is a good place to start.
`MR. MCNAMARA: All right. So now for Moore, up on Slide 9,
`Moore really goes to having a store online. But not just a store that has all
`its web pages in a single server, but having web pages split across different
`servers.
`And what Moore spends some time describing is how you design
`those web pages. And we are likely going to talk about that for a decent
`amount of today as to why Moore really discloses that these pages are going
`to have all sorts of different defaults.
`You have got to make creating the individual pages faster but it’s also
`going to confer a very similar overall appearance to all the pages that are
`created by the merchant.
`Now on Slide 10, we are just going to signpost this for you.
`JUDGE BOUCHER: Moore has no examples, correct? That would
`allow us to perform an actual visual comparison of the storefront page with
`the buy page is that right?
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`
`MR. MCNAMARA: That’s correct. There is no figure that shows
`you a storefront page and a buy page in their entirety. There is an example
`of a buy page where you’re seeing kind of the middle part of the buy page
`but there is no example where you can compare and contrast the storefront
`page with the buy page.
`Instead, what Moore does, is it talks about the defaults. It talks about
`having a default header on all pages which includes a company logo. It talks
`about having a default footer on all pages. It talks about having a default
`background color for all pages. And it talks about having a common page
`style for all pages.
`JUDGE BOUCHER: Well, but, I mean, it describes those defaults in
`that one subsection of Moore, I can't remember what it's titled, maybe
`building a page or something like that.
`Why, I mean, this is, I think this is the crux of the issue. Why do
`those defaults extend to the buy page? When they’re described in a different
`section it seems like Figure 14 of Moore is kind of a natural completion
`point to the development tool building the storefront pages and it's got the
`publishing the site button on that page.
`And Figure 15 I think has additional components that you could use to
`have those same features on the buy page which would seem redundant to
`me.
`
`MR. MCNAMARA: I'm glad you brought that up. Let me shift to
`page or Slide 28. All right. Now for Slide 28, what we have highlighted
`here is the description of the development tool on Moore. All right.
`This description goes from column 10 line 43 all the way to column
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`12 line 32. That’s a single section of this specification. It starts as you can
`see column 10 line 43 with a detailed description of the development tool.
`That’s a single development tool that’s going to be described in that section.
`All right. Then it goes through and talks about setting up the defaults
`for all the pages. Then it goes though and talks about actually designing
`individual pages and changing and customizing pages.
`And so if you look really close to the beginning, column 10 lines 48 to
`53, Moore talks about the development tool going through these certain
`steps. All right. And this is the section that describes that buy page section
`as well as the default set up section.
`And it talks about the first thing you are going to do is select a website
`category. So if I'm going to do a website that has to do with publishing
`online documents, I'm going to select one category. If I'm going to sell auto
`parts I'm going to select a different category. Then it talks about --
`JUDGE BOUCHER: So just to be clear. What subsection are we in
`when you are referring to these? Because the detailed description of the
`development tool in those columns, their subsection a, launching the
`development tool, then b, building the page, which talks about Figures 6 to
`14, and then c, interfacing with the distributed electronic commerce system,
`which talks about Figure 15 and 16.
`MR. MCNAMARA: Right. And this --
`JUDGE BOUCHER: So these general things that you are talking
`about are described in which of the subsections?
`MR. MCNAMARA: This is talking about b, building the page.
`JUDGE BOUCHER: Okay.
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`
`MR. MCNAMARA: So the general idea of building any one of the
`pages in the website is talked about in this section.
`JUDGE BOUCHER: Why -- what is your support for that? Why
`does that extend to Figures 15 and 16 that are talked about in a different
`subsection?
`MR. MCNAMARA: I'll get to that in as second after we set this up,
`it's the next slide. What this talks about is you are going to select your
`category, then you are going to collect the header and footer information.
`Then you are going to set your defaults for the background color and your
`common sort of page style and then you are going to fill in the content of
`each page.
`Now when we talk about the defaults, setting up these defaults, we
`talk about setting a category but then we get into the header and the footer.
`And this is only on Slide 32. All right.
`Now for Slide 32, the second step here is to create the default header
`and footer. Now when the specification in the figures talks about this header
`and footer, it says that it is going to be the top of each page.
`It doesn’t say that it is going to be at the top of each storefront page, it
`doesn’t say that it’s going to be at the top of some of the pages. It says that
`it is going to be at the top of each page.
`JUDGE BOUCHER: Right. But that’s ambiguous, right. You would
`at least concede that. It doesn’t explicitly say they will be at the top of each
`storefront page and each buy page. It doesn’t say that explicitly.
`MR. MCNAMARA: It doesn’t explicitly say that it’s going to be at
`the top of each storefront page and each buy page. It does, but it doesn’t say
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`each storefront page. It’s not limited in any way.
`It’s very careful to say at the top of each page. That’s every page
`that’s designed by this development tool. And it’s uncontroverted that the
`buy page section is within that section that describes the development tool.
`And so this each page talks about all those pages in the development
`tool. DDR is trying to set up this strawman that part of the development tool
`is specifically designed for storefront pages, right. So that you have the
`storefront section and then the buy page section. That's not what the
`reference does.
`The reference talks about designing each page, setting the header for
`each page including this logo. Setting the footer for each page, including
`URL's and things like that. All right.
`And when we saw the argument that DDR was saying this section has
`to do with storefront pages, I searched. I read through it, and then I did a
`word search for storefront in this section. It's nowhere in there. These
`defaults don’t reference storefront pages anywhere.
`And when you look at the figure, it’s explicit that this is at the top of
`each page and that the footers are at the bottom of all pages. If Moore was
`trying to say that the header and footer were only going to be on certain
`pages, that would be a very different disclosure. That’s not what’s disclosed
`here.
`
`JUDGE BOUCHER: Okay.
`JUDGE DEFRANCO: Mr. McNamara, this is Judge DeFranco. Here
`is your problem. It's column 11, it’s the very last paragraph in column 11
`which says that when the pages are all related, the development tool allows
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`the merchant to upload or publish the web pages.
`So that is drawing the distinction between section b and that following
`section c. So it's not like all those stylistic aspects of the storefront pages are
`being carried over to the buy page according to that paragraph. Once you
`publish the storefront pages, that’s it.
`MR. MCNAMARA: That’s right. The last paragraph in that section
`talks about the publishing of the storefront pages. And Moore is very
`careful about how you publish the different pages. Buy pages --
`JUDGE DEFRANCO: But isn’t that paragraph then -- isn’t -- from
`that paragraph isn’t there a distinction between what is done in section b and
`what is done in Section c?
`MR. MCNAMARA: I don’t believe so. Section b talks about the
`defaults, setting up defaults for all pages. It talks about in the immediately
`preceding paragraph that you’re -- the development tool also provides the
`previewing option which uploads all of the pages and allows the merchant to
`view the entire website with a web browser.
`It’s talking about providing a preview for the entire website. That
`next page talks about publishing certain pages. It says the pages. And if we
`--
`
`JUDGE BOUCHER: No it doesn’t, right. It’s, that paragraph says
`when the pages are all created. So why isn't that referring to just the
`storefront pages at the -- Moore has not even yet discussed the buy pages at
`that point in that section.
`MR. MCNAMARA: Sir, I'm just trying to get to the actual paragraph
`that we are discussing.
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
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`
`JUDGE BOUCHER: Column 11, it’s the final paragraph around line
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`62.
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`MR. MCNAMARA: Sorry, I pulled up the wrong reference here.
`Sorry for the delay for those that are remote, I'm just trying to get to the
`particular paragraph.
`So when you take a look at the language and the language of the
`patent as always is important. The second-to-last paragraph at the bottom of
`column 11 at the, of Moore, talks about this idea of previewing the entire
`website with a web browser. All pages. It uses those types of language.
`When you look at the bottom paragraph, it says when the pages are all
`created, the development tool always allows the merchant to upload or
`publish the web pages to a site specified by the merchant.
`When it's talking about that uploading and publishing here, it’s saying
`the web pages. It’s not saying the entire site, it's not saying all web pages,
`it's not using that language.
`And Moore was explicit when it talked about the header and the footer
`being on all pages, the background color, the default style, applies to all
`pages. Here what he is talking about is uploading and publishing the pages.
`Not all pages, not the entire website. And so he is very careful about that
`language.
`JUDGE BOUCHER: Well, what is the word all doing there in the,
`you know, in the first clause of that first sentence of the paragraph when the
`pages are all created?
`MR. MCNAMARA: Because what we are talking about here is the
`section building a page. It’s a general section about building all of the
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`pages. Now later they talk about -- that Moore goes into it it talks about
`specific characteristics of the buy page. Right. Because that’s a very special
`animal that has special characteristics.
`But what this is saying is after you have created all the pages, it’s time
`to upload and publish. And it says earlier in the patent that you’re going to
`upload and publish in a particular way.
`For the storefront pages, you’re going to create the HTML and you
`are going to put them on whatever server you want to put them on. And that
`paragraph is specifically referring to making those pages available, to
`publishing those pages.
`That paragraph at the bottom of column 11 after you are done creating
`all your pages, you’re going to publish some of them. With the web pages
`that you are going to publish they are going to be created and uploaded
`there. Section b applies to all of the pages.
`JUDGE BOUCHER: So in saying when the pages are all created is
`that referring also to the buy page?
`MR. MCNAMARA: Yes. So the section b is talking about building
`the pages, designing the pages. That’s what it’s talking about. And it at no
`point says we're only talking about building the storefront pages. At no
`point in this section does it restrict what it is doing. It’s talking about the
`process for building all of the web pages.
`Now you’re right, in that when you look at the top of the next column,
`it starts talking about particular characteristics of the buy page. Right. But
`in the particular characteristics of the buy page, if you take a look at Slide
`38, if I go to the right tool to look at Slide 38. Wait a minute. All right.
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`
`So Your Honor referred to duplicative controls and that’s a favorite of
`DDR here. None of these controls are duplicative. What the specification is
`clear about is that for each page that you are going to design and this is one
`of the pages you are designing. You are going to set up defaults.
`A default header, a default footer, default background, default page
`style and then you are going to populate it. You are going to fill in the style
`components, okay. And what the specification says is you are going to
`customize.
`You can change the background color. You can change things. You
`don’t have to, right, you set up the defaults to make it faster and so that you
`are not going to do that for the most part, but you can change your
`background color.
`That’s completely consistent with how the design of the web page is
`disclosed by Moore.
`JUDGE BOUCHER: That individualization though according to your
`reading is only for the buy pages, not for the storefront pages.
`MR. MCNAMARA: No, all pages can be customized. So you set up
`your defaults, you set up your header, you set up your footer, you set up
`your default background, you set up your default page style.
`And then what Moore provides is that you can customize. Right. It
`says each page created by the merchant can as mentioned earlier be
`modified. All right. So the --
`JUDGE FINAMORE: Excuse me.
`MR. MCNAMARA: Yes.
`JUDGE FINAMORE: Does Figure 15 pertain to the building of the
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`URL associated with the buy page or the customization of the buy page?
`MR. MCNAMARA: Both. So what Figure 15 talks about is how you
`provide information into the buy page. All right. So the buy page is loaded,
`the defaults are already there and then it gives you options to change things
`if you want, right.
`So if I'm selling a product -- if my background color is white and I'm
`selling white paper and I have a picture of a sheet of paper that I put on the
`buy page, I don’t want the background to be white. I need to change the
`background color to black or blue or something like that so I can see the
`white page.
`So what Figure 15 talks about is providing information to the -- to
`design your buy page and then you hit okay and it creates a price URL.
`JUDGE DEFRANCO: But, Counsel, this is Judge DeFranco. Why
`would you need the customization in Figure 15 if you already had that
`customization in Figure 8? That's what DDR is contending that there is
`redundancy here.
`And I think that you already said you can use the defaults in the
`storefront pages as well as customizing those storefront pages using the
`selections in Figure 8. So why would you need Figure 15 then if they
`weren't separate and distinct?
`MR. MCNAMARA: Figure 8 talks about selecting the page
`background and style. What is described in the section that’s associated
`with Figure 8 which is on figure, I'm sorry, page -- Slide 33, is here we're
`talking about setting up the defaults. Right.
`So you are going to set up the default light colored background, that’s
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`the default for all the pages. You are going to set a default page style for
`each page but then and this is in the default section, right. This is where you
`are in the third step that we talked about.
`The development tool has those four steps. The category you are
`going select, you are going to set your header and footer. You are going to
`set in the third step a default background or a default page style. And then
`you are going to actually generate the individual pages. Right.
`So here you select your defaults in page 8 and then when you go to
`actually design your pages, right, Figure 10 allows you to design a particular
`page, right. This is an example of building kind of a page for storefront
`pages. And then it talks about in Slide 38 building a buy page.
`So in Figure 8 you talk about defaults, setting up all your defaults so
`all your pages have a corresponding overall appearance. And then in Figure
`15, you are talking about how you individualize the buy page. You can
`change the background away from your default.
`JUDGE BOUCHER: How do I individualize the storefront, one of
`the storefront pages?
`MR. MCNAMARA: So individualizing storefront pages is talked
`about in Slide 34 that reproduces Figure 10. It talks about when you get to
`the point where you're going to create individual pages, you are going to fill
`in the individual style elements and you can change them if you need to.
`Right.
`JUDGE BOUCHER: Does Figure 10 apply to the buy page?
`MR. MCNAMARA: Figure 10 could apply to the buy page but here
`it's disclosed as just one of the web pages. It's talking about filling in the
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
`
`style consultants for any one of the web pages.
`For the buy page, they have a specialized script or a specialized
`design tool for the buy pages. And the reason for that is for buy pages, they
`are going to be created in a specialized way. Right.
`Buy pages are going to have the information about the commerce
`object or what you're selling actually inserted into the, a price URL and then
`there is going to be links to Java applets that are associated with style
`elements that will actually build a page on a fly, right. But you are going to
`generate these buy pages in a different way.
`And what the patent talks about is that you want to be able to maybe
`change the price of your product quickly, right. So if I have a website and I
`want to put something on sale, I want to go to my web server and change the
`URL to where it actually has the price in it to be 9.99 instead of 19.99.
`But I don't want to log into the store builder server. I don't want to
`have to regenerate the entire web page, the entire website. I want to just be
`able to edit that price a little bit. That's why this difference for the buy page
`exists.
`JUDGE DEFRANCO: So, Mr. McNamara, with your Figure 16 then
`the merchant could customize that web page so it's entirely different,
`meaning customize the buy page so it's entirely different from the storefront
`page, right?
`MR. MCNAMARA: That’s absolutely correct. The merchant --
`JUDGE DEFRANCO: So there is nothing in Moore then that keeps
`some sort of commonality to the two pages.
`MR. MCNAMARA: I absolutely disagree. So you could --
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
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`JUDGE DEFRANCO: Well, where does it (inaudible)
`MR. MCNAMARA: The commonality is found throughout Moore.
`Moore spends a column and a half --
`JUDGE DEFRANCO: Well, throughout Moore is not good enough.
`I mean, please point me to a specific part of the specification where it says
`that.
`
`MR. MCNAMARA: Sure. So Slide 32, it talks about setting a header
`and a footer for each page. That’s every single page.
`For Slide 33, it talks about setting a default background and a default
`page style for the pages. That sets up your common appearance of all the
`pages that you design.
`Now if you want to do something different you can. It allows you to
`change things, right. It doesn't make it so you have to make every single
`page look perfectly the same.
`But this teaching of Moore is set up your defaults so your pages are all
`going to start out looking the same and then you can add content to them.
`It's talking about creating pages with a common overall appearance. And
`that’s perfectly in keeping with how the Federal Circuit interpreted the
`requirements of the claims in the Claim 17 of the 572 which it invalidated
`that included a common overall appearance requirement. And that’s exactly
`what is disclosed by Moore. And I'm happy to go into that.
`JUDGE BOUCHER: I think I understand your position at this point.
`Just proceed with what you want to say on the other issues.
`MR. MCNAMARA: So I would like to spend a little bit of time
`talking about the Federal Circuit decision and the meaning of corresponding
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`IPR2018-01008 and IPR2018-01011 (Patent 9,636,876 B1)
`IPR2018-01009 and IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01010 and IPR2018-01014 (Patent 8,515,825 B1)
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`overall appearance.
`So the, in the Institution Decision I think the Board got this right. The
`Board agreed with Petitioners that Moore discloses a common overall
`appearance. It discloses these default headers and footers that go across all
`the pages by default. It disclosed having a logo. It disclosed having a
`common background color and it discloses having a common page style
`throughout all the pages. All right.
`And you asked us to take a, to clarify that, to really tell us, tell the
`Board what was required by this common or sorry, the corresponding overall
`appearance.
`We think that Patent Owner squandered that opportunity, that
`invitation and just tried to muddy the waters between what is really meant by
`the claim language and what the Federal Circuit has told us is meant by the
`claim language. And we would just like to review that here.
`This all kind of hearkens back to the claim language we reproduced
`on Slide 12. Claim language that is the corresponding overall appearance
`appears in all of the claims here.
`For example Claim 1 of the 876 patent we have got visual
`correspondence relates to overall appearance of the composite web page.
`That corresponding overall appearance appears throughout.
`JUDGE DEFRANCO: So, Mr. McNamara, your position is that
`overall appearance means to simply look and feel as opposed to an overall
`match?
`MR. MCNAMARA: That’s absolutely correct and that's what the
`Federal Circuit thought -- found. They found that look and feel means
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