Paper 10
`
`Trials@uspto.gov
`Entered: February 1, 2022
`
`571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
` NIANTIC, INC.,
` Petitioner,
`
` v.
`
` NANT HOLDINGS IP, LLC,
` Patent Owner.
` __________________________
`
` IPR2021-01119
` Patent 10,664,518 B2
`
`
`Before SALLY C. MEDLEY, THOMAS L. GIANNETTI, and
`STEPHEN E. BELISLE, Administrative Patent Judges.
`
`GIANNETTI, Administrative Patent Judge.
`
`
`
`
`
`
`DECISION
`Denying Request for Rehearing
`37 CFR § 42.71(d)
`
`
`
`Trials@uspto.gov
`Entered: February 1, 2022
`
`571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
` NIANTIC, INC.,
` Petitioner,
`
` v.
`
` NANT HOLDINGS IP, LLC,
` Patent Owner.
` __________________________
`
` IPR2021-01119
` Patent 10,664,518 B2
`
`
`Before SALLY C. MEDLEY, THOMAS L. GIANNETTI, and
`STEPHEN E. BELISLE, Administrative Patent Judges.
`
`GIANNETTI, Administrative Patent Judge.
`
`
`
`
`
`
`DECISION
`Denying Request for Rehearing
`37 CFR § 42.71(d)
`
`
`
`
`IPR2021-01119
`Patent 10,664,518 B2
`
`
`I. INTRODUCTION
`Niantic, Inc. (“Petitioner”) filed a Petition requesting inter partes
`review of claims 1–9, 11–20, 23–32, and 34–36 (the “challenged claims”) of
`U.S. Patent No. 10,664,518 B2 (Ex. 1001, “the ’518 patent”). Paper 2
`(“Pet.”). Nant Holdings IP, LLC (“Patent Owner”) filed a Preliminary
`Response. Paper 6 (“Prelim. Resp.”). With our authorization, Petitioner
`filed a Reply to Patent Owner’s Preliminary Response. Paper 7 (“Prelim.
`Reply”).
`On December 9, 2021, we denied the Petition as to all challenged
`claims. Paper 8 (“Decision”).
`Petitioner requests reconsideration of our Decision. Paper 9 (“Req.
`Reh’g”). Petitioner’s grounds for seeking rehearing are that (1) the Decision
`misapplied the law and overlooked and misapprehended Altman’s1
`disclosure of tessellated tiles; and (2) the Decision overlooked CaveLie’s2
`disclosure of tessellated tiles because the decision misapprehended the
`combination of CaveLie with Altman. Req. Reh’g 2, 5.
`For the reasons that follow, Petitioner’s request for rehearing is
`denied.
`
`II. ANALYSIS
`The applicable standard for a request for rehearing is set forth in
`37 C.F.R. § 42.71(d), which provides in relevant part:
`A party dissatisfied with a decision may file a single
`request for rehearing without prior authorization from the Board.
`
`1 U.S. Patent App. Pub. No. 2008/0132251 A1 (Ex. 1003).
`2 U.S. Patent App. Pub. No. 2013/0124563 A1 (Ex. 1004).
`
`
`
`
`2
`
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`IPR2021-01119
`Patent 10,664,518 B2
`
`
`The burden of showing a decision should be modified lies with
`the party challenging the decision. 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, a reply, or a sur-reply.
`When rehearing a decision on a petition to institute, a panel will review the
`decision for an abuse of discretion. 37 C.F.R. § 42.71(c).
`A rehearing request is not an opportunity for the requesting party to
`reargue its case or merely to express disagreement with the Decision, which
`is all the Petitioner has done in this instance.
`A. Altman’s Alleged Disclosure of Tessellated Tiles
`The ’518 patent relates to systems and methods that provide
`augmented reality (“AR”) content to one or more user devices based on at
`least one of location identification and object recognition. Ex. 1001, 2:15–
`18. In this process, area tile maps are generated. Id. at 19:36–38.
`The area tile maps include a plurality of tessellated tiles, regular or
`non-regular (e.g., semi-regular, aperiodic), covering at least some of the area
`of interest. Id. at 3:36–38, 18:38–40. The parties have agreed to construe
`“tessellated tiles” as “tiles fitted together to cover an area without gaps.”
`Decision 9.
`The claims recite a processor that is configurable to “access an area
`tile map of the area of interest, the area tile map represented by a set of tile
`subareas that includes one or more tessellated tiles from a tessellated tile
`map.” Exhibit 1001, 26:56–59. The claims also recite “identify[ing] a tile
`subarea” and “one or more tessellated tiles within the identified tile subarea
`. . . associated with one or more AR content objects.” Id. at 26:60–67.
`
`
`
`3
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`IPR2021-01119
`Patent 10,664,518 B2
`
`
`Petitioner argued that Altman discloses tessellated tiles meeting these
`limitations. Pet. 22–25. Petitioner asserted:
`Altman further discloses that the area tile map is
`represented by a set of tile subareas that includes one or more
`tessellated tiles. Each of Altman’s map tiles constitutes a tile
`subarea. For example, Altman discloses that “a map tile of the
`United States may provide an image of the continental U.S. that
`can be zoomed to display a regional street level map for any area
`in the U.S.”
`Pet. 22 (citing Altman ¶ 43) (emphasis altered). Further, Petitioner asserted:
`“Altman further discloses that the map tiles can be tessellated tiles.” Id. at
`23 (citing Altman ¶¶ 37, 43).
`In our Decision, we adopted the parties’ agreed construction of
`“tessellated tiles.” Decision 10. However, after discussing each of
`Petitioner’s arguments, as well as those of Patent Owner (id. at 19–21), we
`concluded that Altman does not disclose the claimed tessellated tiles:
`“[W]e are not persuaded that Petitioner has demonstrated that Altman
`teaches or suggests ‘access[ing] an area tile map of the area of interest, the
`area tile map represented by a set of tile subareas that includes one or more
`tessellated tiles from a tessellated tile map”’ or ‘“identify[ing] a tile subarea
`. . . wherein one or more tessellated tiles within the identified tile subarea are
`associated with one or more AR content objects.” Id. at 21–22.
`We pointed out that there is no discussion in Altman of tessellated
`tiles. Decision 22. We observed that “[w]hile it is true that Altman
`discusses map tiles, there is no disclosure in Altman of how those tiles are
`arranged, much less whether they are ‘tiles fitted together to cover an area
`without gaps.”’ Id. And we specifically addressed the portions of Altman
`
`
`
`4
`
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`IPR2021-01119
`Patent 10,664,518 B2
`
`(paragraphs 37, 43, Figure 2A) relied on by Petitioner to support its
`argument:
`
`The portions of Altman relied on by Petitioner do not
`support its argument that Altman discloses tessellated tiles.
`Thus, for example, paragraph 37 of Altman, cited by Petitioner,
`mentions “map tiles” but provides no description of what they
`are or how they are arranged. Ex. 1003 ¶ 37. Similarly,
`paragraph 43 of Altman, also cited by Petitioner, describes the
`map tiles as “image files of maps with varying degrees of
`granularity,” but does not provide any description of how the
`tiles are arranged. Id. ¶ 43. Nor does Figure 2A of Altman or its
`description in the text demonstrate that Altman’s map is made up
`of tessellated tiles. Prelim. Resp. 17.
`
`Id.
`We also addressed the testimony of Petitioner’s expert, Dr. Zyda. Id.
`
`at 23. We concluded that his testimony did not “convince us that Altman
`meets the ‘tessellated tiles’ limitation.” Id. We observed that Dr. Zyda’s
`testimony “tracks the arguments in the Petition closely,” including “cit[ing]
`the same disclosures from Altman (Ex. 1003 ¶¶ 37, 43, and Fig. 2A) as does
`the Petition.” Id.
`
`Apparently, Petitioner now agrees that Altman does not provide an
`“express” disclosure of tessellated tiles. Req. Reh’g 5–6. Thus, Petitioner
`faults our Decision because it “mistakenly required an express disclosure of
`tessellated tiles” because Altman (quoting the Decision) “does not provide
`any description of how the tiles are arranged.” Id. Petitioner asserts that
`“the standard for assessing a reference in the context of obviousness is not
`based solely on what it expressly discloses, but also for what it fairly
`suggests.” Id. at 6 (citing cases) (internal quotation marks omitted).
`
`
`
`5
`
`
`
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`IPR2021-01119
`Patent 10,664,518 B2
`
`We did not misapprehend or overlook this argument. In reaching our
`
`conclusion that Altman’s disclosure of tessellated tiles is insufficient, we
`specifically addressed Petitioner’s argument that a person of ordinary skill
`“would have understood” that Altman discloses a tessellated tile map.
`Decision 23. We considered also Dr. Zyda’s testimony that in Altman,
`“[a] person of ordinary skill in the art would have understood that these map
`tiles are tessellated tiles.” Id. (quoting Zyda Decl. ¶ 161). We observed that
`the paragraph Dr. Zyda relies on for this testimony (paragraph 43 of Altman)
`does not support this conclusion. Id. We also cited Dr. Zyda’s testimony
`that “[a] person of ordinary skill in the art would have understood that each
`layer or [sic] the area tile map [in Altman] as a whole (considering all layers
`collectively) constitutes a tessellated tile map.” Id. (quoting Zyda Decl.
`¶ 161). We observed that Dr. Zyda cites no supporting evidence for this
`conclusion. Id.
`
`We cited our Trial Practice Guide, which cautions that “[e]xpert
`testimony . . . cannot take the place of a disclosure in a prior art reference,
`when that disclosure is required as part of the unpatentability analysis.”
`Consolidated Trial Practice Guide 36 (November 2019), available at
`https://www.uspto.gov/TrialPracticeGuideConsolidated. We concluded that
`we were “not persuaded by Dr. Zyda’s speculations on what persons of
`ordinary skill would have known (including those discussed supra) because
`either they are not properly supported by the cited evidence, or they do not
`cite any evidentiary support at all. “ Id.
`
`Petitioner’s cited authorities do not persuade us that we
`misapprehended or overlooked anything in reaching this conclusion. Req.
`
`
`
`6
`
`
`
`
`IPR2021-01119
`Patent 10,664,518 B2
`
`Reh’g 6. Instead, the cases cited merely recite general principles of patent
`law that are not in dispute here. For example, several are cited for the
`unchallenged proposition that a reference must be assessed from the point of
`view of a person of ordinary skill in the art. Id. From these generalizations,
`Petitioner implies that we overlooked or misapprehend Altman’s alleged
`“implicit disclosure” of tessellated tiles. Id. at 7.
`
`We do not agree. As discussed supra, we considered this argument in
`relation to Altman’s alleged disclosure of tessellated tiles (including
`Dr. Zyda’s related testimony), and found that it was not supported by the
`record before us. As discussed supra, we did not find in paragraph 43 of
`Altman either an explicit or “implicit” disclosure of tessellated tiles. See
`Decision 22–23. Specifically, we found unpersuasive Dr. Zyda’s conclusion
`that “[a] person of ordinary skill in the art would have understood that these
`map tiles are tessellated tiles,” citing paragraph 43 of Altman for support,
`and his conclusion that “[a] person of ordinary skill in the art would have
`understood that each layer or [sic] the area tile map [in Altman] as a whole
`(considering all layers collectively) constitutes a tessellated tile map,”
`without citing supporting evidence. Decision 23.
`
`Petitioner uses the balance of its Rehearing Request to re-argue issues
`that were decided against it in the Decision. Req. Reh’g 10. These
`arguments address the same evidence that we considered in our Decision and
`found lacking. For example, again addressing paragraph 43 of Altman,
`Petitioner argues that “Altman paragraph 43 does not teach, and a [person of
`ordinary skill] would not have understood, that the entire continental U.S.
`should be represented by a single, highly detailed map tile.” Req. Reh’g 11–
`
`
`
`7
`
`
`
`
`IPR2021-01119
`Patent 10,664,518 B2
`
`13. But that argument was already addressed in the Preliminary Response
`(at pages 16–19) and in our Decision, at pages 22–23. So, too, was the issue
`of whether Altman discloses eliminating gaps between the tiles, referred to
`at page 12 of the Rehearing Request. See Prelim. Resp. 18–19; Decision 22.
`
`A rehearing request is not a proper place to reargue evidence and
`arguments already considered. In sum, for the reasons given, Petitioner does
`not persuade us that we misapprehended or overlooked its arguments or
`evidence in deciding that the Petition failed to demonstrate sufficiently the
`disclosure of tessellated tiles by Altman.
`B. CaveLie’s Combination with Altman.
`Petitioner contends that that the Decision “overlooked CaveLie’s
`disclosure of tessellated tiles because the decision misapprehended the
`combination of CaveLie with Altman.” Req. Reh’g 2.
`In its second ground of challenge, Petitioner relied on the combination
`of Altman, Langseth,3 and CaveLie. Pet. 4. According to the Petition,
`“CaveLie provides implementation details which could be applied to
`Altman’s map tiles.” Id. at 43. Petitioner further explains that “[e]ach level
`of CaveLie’s map tiles is a set of tessellated tiles, since it constitutes ‘tiles
`fitted together to cover an area without gaps.’” Id. at 45.
`In explaining the motivation to combine CaveLie with Altman,
`Petitioner relied on its contention that Altman discloses tessellated tiles: “A
`[person of ordinary skill] would have naturally looked to CaveLie for further
`implementation details on the tessellated tiles already disclosed in Altman.”
`Id. at 46–47 (emphasis added). In our Decision, we noted that “Petitioner
`
`
`3 U.S. Patent App. Pub. No. 2013/0178257 A1 (Ex. 1006).
`8
`
`
`
`
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`IPR2021-01119
`Patent 10,664,518 B2
`
`contends [t]o the extent there is any question whether Altman’s map tiles
`satisfy the ’518 Patent’s map tile limitations, . . . CaveLie provides
`implementation details which could be applied to Altman’s map tiles.”
`Decision 24–25 (internal quotation marks omitted).
`In considering whether Petitioner had demonstrated a sufficient
`motivation to combine Altman and CaveLie, we quoted Petitioner’s
`statement that “[a person of ordinary skill] would have naturally looked to
`CaveLie for further implementation details on the tessellated tiles already
`disclosed in Altman.” Id. at 25 (quoting Pet. 46–47) (emphasis added). We
`also quoted, approvingly, Patent Owner’s argument that “there is no citation
`to anything in these references themselves to support this argument, which is
`apparently based on hindsight.” Id. (quoting Prelim. Resp. 36). And we
`agreed that “Petitioner has failed to demonstrate a sufficient motivation to
`combine Altman with CaveLie, other than hindsight.” Id.
`We reasoned that “Petitioner’s rationale for combining Altman and
`CaveLie proceeds on the assumption that Altman discloses tessellated tiles,
`for which CaveLie allegedly provides ‘further implementation details.’” Id.
`(quoting Pet. 46–47).4 Petitioner labels our reasoning “nonsensical[].” Req.
`Reh’g 3. Petitioner contends “the Decision erred by not fully considering
`
`
`44 As discussed supra, in our analysis in the Decision, we concluded that
`Petitioner did not demonstrate sufficiently that Altman discloses tessellated
`tiles. Petitioner continues to assert that this is an error. For the reasons
`discussed supra, we are not persuaded to grant rehearing of that issue.
`9
`
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`
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`IPR2021-01119
`Patent 10,664,518 B2
`
`Petitioner’s combination of Altman with CaveLie and CaveLie’s clear
`disclosure of ‘tessellated tiles.’” Id.
`We disagree. What follows in the Rehearing Request is a rehash of
`the arguments presented in the Petition, carefully re-crafted to avoid the
`principal argument of the Petition that “[a person of ordinary skill] would
`have naturally looked to CaveLie for further implementation details on the
`tessellated tiles already disclosed in Altman.” Pet. 46–47. For example,
`Petitioner argues that “[o]nly after explaining how implementing Altman in
`light of CaveLie results in Altman’s map tiles being tessellated tiles does the
`Petition make reference to Altman’s ‘tessellated tiles,’ and merely as a
`shorthand for Altman’s map tile disclosure.” Req. Reh’g 5. But that
`argument is contrary to the record. Petitioner refers to Altman’s tiles as
`“tessellated tiles” much earlier in the Petition, at page 23, in discussing a
`challenge based on Altman and Langseth (but not including CaveLie). Pet.
`23 (“Altman further discloses that the map tiles can be tessellated tiles.”).
`The discussion of combining Altman and CaveLie comes much later in the
`Petition, at pages 43–47.
`Also at odds with the record is the citation to page 43 of the Petition at
`page 3 of the Rehearing Request. At page 43, the Petition states that
`“[t]o the extent there is any question whether Altman’s map tiles satisfy the
`’518 Patent’s map tile limitations, . . . CaveLie provides implementation
`details which could be applied to Altman’s map tiles.” Id. Absent from this
`statement in the Petition is any reference to tessellated tiles as one of the
`“implementation details” provided by CaveLie. But in presenting this
`quotation in the Rehearing Request, Petitioner adds a reference to “tesselated
`
`
`
`10
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`
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`IPR2021-01119
`Patent 10,664,518 B2
`
`tiles” after the word “limitations.” Req. Reh’g 3 (adding “including the
`tessellated tile requirements”). Although Petitioner does not represent this
`reference to “tessellated tiles” as being part of the quotation by placing it in
`quotes, its inclusion with the quoted material is misleading by presenting an
`argument that Petitioner did not make in the Petition.
`In sum, Petitioner’s arguments have been considered and do not
`convince us that we overlooked or misapprehended any arguments or
`evidence in concluding that the Petition fails to demonstrate a sufficient
`motivation to combine Altman and CaveLie. In the Petition, as in the
`Rehearing Request, Petitioner consistently argued that Altman discloses
`tessellated tiles. It is therefore not surprising that its argument for
`combining Altman and CaveLie relied on Altman’s tessellated tiles and
`CaveLie’s “implementation details.” Pet. 43.
`
`
`III. CONCLUSION
`Petitioner has not carried its burden of demonstrating that our
`
`Decision denying institution of inter partes review of claims 1–9, 11–20,
`23–32, and 34–36 of the ’518 patent misapprehended or overlooked any
`matters, or that the Board abused its discretion. 37 C.F.R. § 42.71(c), (d).
`
`
`IV. ORDER
`For the foregoing reasons, Petitioner’s Request for Rehearing is
`denied.
`
`
`
`
`
`
`
`11
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`
`IPR2021-01119
`Patent 10,664,518 B2
`
`PETITIONER:
`
`Heidi L. Keefe
`Lauren J, Krickl
`COOLEY LLP
`hkeefe@cooley.com
`lkrickle@cooley.com
`
`
`PATENT OWNER:
`
`Matthew K. Blackburn
`Evan Boetticher
`DIAMOND MCCARTHY LLP
`mblackburn@diamondmccarthy.com
`eeb@nlaw.northwestern.edu
`
`
`
`
`
`
`12
`
`
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