Trials@uspto.gov
`571-272-7822
`
`Paper 13
`Date: December 1, 2022
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE LLC,
`Petitioner,
`v.
`NOBOTS LLC,
`Patent Owner.
`
`IPR2022-00940
`Patent 9,595,008 B1
`
`
`Before JOSIAH C. COCKS, LYNNE E. PETTIGREW, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`COCKS, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`571-272-7822
`
`Paper 13
`Date: December 1, 2022
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE LLC,
`Petitioner,
`v.
`NOBOTS LLC,
`Patent Owner.
`
`IPR2022-00940
`Patent 9,595,008 B1
`
`
`Before JOSIAH C. COCKS, LYNNE E. PETTIGREW, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`COCKS, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`
`IPR2022-00940
`Patent 9,595,008 B1
`
`I.
`INTRODUCTION
`Petitioner Google LLC filed a Petition (Paper 2, “Pet.”) requesting
`inter partes review of claims 1–20 (“the challenged claims”) of U.S. Patent
`No. 9,595,008 B1 (Ex. 1001, “the ’008 patent”). Patent Owner Nobots LLC
`filed a Preliminary Response (Paper 7, “Prelim. Resp.”). With our
`authorization, Petitioner filed a Preliminary Reply (“Pet. Prelim. Reply”)
`(Paper 10) to the Preliminary Response and Patent Owner filed a
`Preliminary Sur-reply (“PO Prelim. Sur-reply”) (Paper 11). We have
`authority under 35 U.S.C. § 314, which provides that an inter partes review
`may not be instituted unless the information presented in the Petition shows
`that “there is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.” 35 U.S.C.
`§ 314(a); see also 37 C.F.R § 42.4(a) (“The Board institutes the trial on
`behalf of the Director.”).
`A decision to institute under § 314 may not institute on fewer than all
`claims challenged in the petition. SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348,
`1359–60 (2018). In addition, if the Board institutes trial, it will “institute on
`all grounds in the petition.” PTAB Consolidated Trial Practice Guide, 5–6
`(Nov. 2019); 37 C.F.R. § 42.108(a); see also PGS Geophysical AS v. Iancu,
`891 F.3d 1354, 1360 (Fed. Cir. 2018) (interpreting the statute to require “a
`simple yes-or-no institution choice respecting a petition, embracing all
`challenges included in the petition”).
`Having considered the arguments and evidence presented by the
`parties, for the reasons set forth below, we institute inter partes review.
`
`2
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`IPR2022-00940
`Patent 9,595,008 B1
`
`A. Related Matters
`The parties state that the ’008 patent was asserted in Nobots LLC v.
`Google LLC, Civil Action No. 6:21-cv-01290 (W.D. Tex., Waco Division).
`Pet. xi; Paper 5, 1.1 Patent Owner further states that the ’008 patent was
`asserted in Nobots LLC v. Google LLC, No. 1:22-cv-00585 (W.D. Tex.,
`Austin Division). Paper 6, 1. Patent Owner also identifies IPR2022-00941
`as a related proceeding. Paper 6, 1.2
`
`B. The ’008 Patent
`The ’008 patent is titled “Systems, Methods, and Apparatus for
`Evaluating Status of Computing Device User.” Ex. 1001, code (54). The
`Abstract of the ’008 patent is reproduced below:
`
`Methods, systems and apparatus for assessing the likely
`user status of a client computing device interacting with a server
`where the computing device is in bi-directional operative
`communication with the server, wherein the likely user status is
`one of a human operator or a computer executable program such
`as a “bot”. By presenting issued data from the server to the client
`computing device and monitoring at least some of the data
`generated at the client computing device in response to the issued
`data, a comparison can be made between the monitored data and
`model data relating to human interaction with or in response to
`the issued data. The results of the comparison can lead to a value
`that represents the likelihood that the monitored data results from
`human interaction with or in response to the issued data.
`Modeled data includes, but is not limited to, data indicative of
`
`
`1 In its filing of updated mandatory notices, Patent Owner indicates that the
`noted proceeding is “now terminated.” Paper 6, 1.
`2 The Petition in IPR2022-00941 was filed on the same day as the Petition in
`the instant proceeding, and involves a related patent (U.S. Patent No.
`10,423,885 B2).
`
`3
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`IPR2022-00940
`Patent 9,595,008 B1
`human interaction with a computing environment, whether
`active or passive.
`Id. at code (57).
`The ’008 patent further summarizes its disclosure as being “for
`assessing the likely user status of a computing device interacting with
`a server where computing device is in bi-directional operative
`communication with the server wherein the status is one of a human
`operator or a computer executable program (also referred to herein as
`a ‘bot’).” Id. at 2:13–18.
`By way of background, the ’008 patent explains that it became
`necessary for builders of web sites to develop “tests” to distinguish between
`human users and bots. The ’008 patent further describes the following:
`
`Carnegie Mellon University coined the term “CAPTCHA”
`(Completely Automated Public Turning test to tell Computers
`and Humans Apart) for these types of tests. A common type of
`CAPTCHA requires that the user type the letters, digits or
`characters of a distorted image appearing on the screen. The
`objective is to create an image that a bot cannot easily parse but
`that is discernable by a human. Such efforts have been successful
`in preventing non-adaptive software from recognizing the
`imaged characters, but people intent on abusing these sites have
`designed ways to circumvent the CAPTCHA, such as through
`specially tuned character recognition programs.
`Id. at 1:22–33.
`
`“Current CAPTCHA technology is visual or auditory in nature,
`requiring the human user to answer a test that should be simple to most
`humans but difficult for non-humans, e.g., bots.” Id. at 1:54–56. The ’008
`patent describes additional assessment measures, beyond an auditory or
`visual CAPTCHA test, involving a comparison of “acquired and/or available
`data relating to the operation of the computing device to suitable models
`
`4
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`Patent 9,595,008 B1
`embodying human user derived data (model data).” Id. at 2:18–21.
`“[A]cquired” data can include “active” data such as “pointing device vector
`movements,” “key stroke combinations,” or “time differentials” between
`“stimulus” (e.g., dialog box displays or radio buttons on a computer screen)
`and a user response’s response to such stimulus. Id. at 2:60–3:5.
`“[A]vailable” data can include “passive” data such as “browser cookies,”
`“destination IP histories,” and a computer’s “IP address.” Id. at 3:9–17.
`Assessment of such data may be used to establish “a probability value” as to
`whether a particular operator is a human or a bot. Id. at 2:18–25.
`
`C. Challenged Claims
`Petitioner challenges claims 1–20 of the ’008 patent. Claims 1 and 19
`are independent claims. Claim 1 is representative and is reproduced below:
`1. A method for assessing a confidence level that an
`operator of a client computing device interacting with a server is
`a human being rather than an autonomic computer application,
`the method comprising:
`a) a single user of a client computing device requesting
`data from a server;
`b) the server presenting data issued by the server to the
`client computing device;
`c) monitoring at least some data generated by the user at
`the client computing device in response to the issued data;
`d) comparing the monitored data to model data relating to
`human interaction with or in response to the issued data; and
`e) generating a value that represents a confidence level that
`the monitored data is a result of human interaction on the client
`computing device rather than that of an autonomic user with or
`in response to the issued data.
`Ex. 1001, 5:35–5:52.
`
`5
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`IPR2022-00940
`Patent 9,595,008 B1
`D. Alleged Grounds of Unpatentability
`Petitioner asserts the following grounds of unpatentability:
`Claim(s) Challenged
`35 U.S.C. §
`Reference(s)/Basis
`1–3, 6–18
`102/103
`Willner3
`1–18, 20
`103
`Willner, Kitts4
`1–18, 20
`102/103
`O’Connell5
`1–18, 20
`103
`O’Connell, Kitts
`19, 20
`102/103
`Kitts
`Pet. 1. In addition to the references listed above, Petitioner relies on the
`Declaration of Daniel P. Lopresti, Ph.D. (Ex. 1003).
`
`II. ANALYSIS
`A. Principles of Law
`A petition must show how the construed claims are unpatentable
`under the statutory grounds it identifies. 37 C.F.R. § 42.104(b)(4).
`Petitioner bears the burden of demonstrating a reasonable likelihood that it
`would prevail with respect to at least one challenged claim for a petition to
`be granted. 35 U.S.C. § 314(a).
`To establish anticipation under 35 U.S.C. § 102, “all of the elements
`and limitations of the claim must be shown in a single prior art reference,
`arranged as in the claim.” Karsten Mfg. Corp. v. Cleveland Golf Co., 242
`F.3d 1376, 1383 (Fed. Cir. 2001).
`
`
`3 U.S. Patent Application Publication No. US 2009/0024971 A1 published
`Jan. 22, 2009 (“Willner,” Ex. 1005).
`4 U.S. Patent Application Publication No. US 2008/0114624 A1 published
`May 15, 2008 (“Kitts,” Ex. 1009).
`5 U.S. Patent Application Publication No. US 2007/023,9604 A1 (published
`Oct. 11, 2007) (“O’Connell,” Ex. 1007).
`
`6
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`Patent 9,595,008 B1
`A claim is unpatentable under § 103(a) if the differences between the
`claimed subject matter and the prior art are such that the subject matter, as a
`whole, would have been obvious at the time the invention was made to a
`person having ordinary skill in the art to which said subject matter pertains.
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
`obviousness is resolved on the basis of underlying factual determinations,
`including (1) the scope and content of the prior art; (2) any differences
`between the claimed subject matter and the prior art; (3) the level of skill in
`the art; and (4) when in evidence, objective indicia of non-obviousness
`(i.e., secondary considerations). Graham v. John Deere Co., 383 U.S. 1,
`17–18 (1966).
`At this preliminary stage, we determine whether the information
`presented shows a reasonable likelihood that Petitioner would prevail in
`establishing that at least one of the challenged claims would have been
`obvious over the proposed prior art. We analyze the asserted grounds with
`the above-noted principles in mind.
`
`B. Level of Ordinary Skill in the Art
`In determining the level of skill in the art, we consider the type of
`problems encountered in the art, the prior art solutions to those problems, the
`rapidity with which innovations are made, the sophistication of the
`technology, and the educational level of active workers in the field. Custom
`Accessories, Inc. v. Jeffrey-Allan Indus. Inc., 807 F.2d 955, 962 (Fed. Cir.
`1986); Orthopedic Equip. Co. v. U.S., 702 F.2d 1005, 1011 (Fed. Cir. 1983).
`Petitioner contends that a person of ordinary skill in the art at the time
`of the invention of the ’008 patent “would have had a bachelor’s degree in
`computer science or a related field with coursework relating to computer
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`Patent 9,595,008 B1
`science, plus two years’ academic and/or industry experience in computer
`security. More education could substitute for experience, and vice versa.”
`Pet. 4 (citing Ex. 1003 ¶¶ 36–40). Patent Owner does not dispute this
`proposed level of skill. Prelim. Resp. 12.
`For purposes of this Decision, we adopt Petitioner’s proposal as
`reasonable and consistent with the prior art. See Okajima v. Bourdeau, 261
`F.3d 1350, 1355 (Fed. Cir. 2001) (the prior art may reflect an appropriate
`level of skill in the art).
`
`C. Claim Construction
`We construe claims in the same manner used in a civil action under
`35 U.S.C. § 282(b) “including construing the claim in accordance with the
`ordinary and customary meaning of such claim as understood by one of
`ordinary skill in the art and the prosecution history pertaining to the patent.”
`37 C.F.R. § 42.100(b). When applying that standard, we interpret the claim
`language as it would have been understood by one of ordinary skill in the art
`in light of the specification. Wasica Fin. GmbH v. Cont’l Auto. Sys., Inc.,
`853 F.3d 1272, 1279–80 (Fed. Cir. 2017). Thus, we give claim terms their
`ordinary and customary meaning as understood by an ordinarily skilled
`artisan. See Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir.
`2005) (en banc). Only terms that are in controversy need to be construed,
`and then only to the extent necessary to resolve the controversy. Nidec
`Motor Corp. v. Zhongshan Broad Ocean Motor Co. Matal, 868 F.3d 1013,
`1017 (Fed. Cir. 2017).
`1. Mis-lettered Steps
`At the outset, we observe that both parties identify a disparity in the
`lettering of steps in dependent claims 6, 11, 12, and 15–18 that is said to
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`Patent 9,595,008 B1
`have arisen during prosecution in which claim 1 was amended to add a new
`step “a).” See Pet. 5; Prelim Resp. 15–18. In that regard, claim 1 originally
`included letters steps “a)” through “d),” but after amendment, those steps
`became steps “b)” through “e).” See Pet. 5; Prelim. Resp. 15–18. Claims 6,
`11, 12, and 15–18, however, which refer to at least one of the original
`lettered steps “a)” through “d),” were not updated to reflect the resulting
`shift in step lettering. Patent Owner contends that the “mistake” is clear, and
`the claims should be regarded with the “reasonable correction” of simply
`regarding the steps referenced in claims 6, 11, 12, and 15–18 as having been
`“shifted forward by one letter.” Prelim. Resp. 15. For its part, Petitioner
`acknowledges that those claims “were never updated,” but expresses that we
`need not “decide between the possible interpretations” as the “Petition’s
`grounds meet the claims under both interpretations.” Pet. 5.
`We discern that there is ostensible agreement between the parties that
`a readily identifiable mistake occurred during prosecution, and that
`perceiving claims 6, 11, 12, and 15–18 as having been appropriately
`“updated” would seemingly, on its face, account for the mistake.
`Accordingly, we take the approach that is pragmatic, for the purpose of
`instituting this inter partes review and conducting the resulting trial, and we
`regard the referenced steps in dependent claims 6, 11, 12, and 15–18 as
`having been “updated” or corrected in the manner made explicit by Patent
`Owner and implicitly acknowledged by Petitioner in this proceeding.6
`
`
`6 In that regard, we agree with Patent Owner that were we to not take such
`an approach, the meanings of the relevant clauses for the pertinent
`dependent claims are seemingly nonsensical or “illogical.” See Prelim.
`Resp. 16–17.
`
`9
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`IPR2022-00940
`Patent 9,595,008 B1
`2. Claim Terms
`Petitioner contends that all claim terms should be given their
`“ordinary and customary meaning as understood by a [person of ordinary
`skill in the art] and the patent’s prosecution history.” Pet. 5. Petitioner
`further contends that such meaning is made explicit in the ’008 patent for the
`following terms: “model data,” “available data,” “issued data,” “monitored
`data,” and “interest data.” Id. (citing Ex. 1001, 2:54–3:46). Additionally,
`Petitioner expresses that, although the specification of the ’008 patent does
`not mention the term “a single user instance,” “a [person of ordinary skill in
`the art] would have understood the phrase to include at least a session in
`which the client navigates among a website’s webpages.” Pet. 24 (citing
`Ex. 1003 ¶ 108).
`Patent Owner agrees that all claims terms have “their ordinary and
`customary meanings as understood by a [person of ordinary skill in the art]
`and the patent prosecution history.” Prelim. Resp. 13. Patent Owner
`proceeds to address that meaning for each of the terms: “the issued data”
`(claim 1); “single user instance” (claims 16 and 17); and “acquiring interest
`data” (claim 19). Id. at 13–15, 18–24.
`For purposes of this Decision, we regard all terms as having their
`ordinary and customary meaning as would be understood by an ordinarily
`skilled artisan. We agree with Petitioner that the ’008 patent sets forth the
`ordinary and customary meaning of the terms “model data,” “available
`data,” “issued data,” “monitored data, and “interest data.” We further
`address below the meaning of “issued data,” and also address the meaning of
`“single user instance.”
`
`10
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`IPR2022-00940
`Patent 9,595,008 B1
`a) “issued data”
`Step 1d) of claim 1 recites a certain comparing step of “monitored
`data” with “model data” relating to human interactions with or in response to
`“the issued data.” Ex. 1001, 5:46–48. Patent Owner contends that, in the
`context of step 1d), “the issued data” is the same “data issued by the server
`to the client computing device” that was introduced in step 1b) of the claim.
`Prelim. Resp. 13–14. We agree with that contention, and it is not apparent
`that Petitioner expresses disagreement on that particular point. Patent
`Owner goes on to assert that “assuming the issued data is a ‘downloaded
`webpage’ as alleged by [Petitioner] (Petition, 11), then the model data must
`be based (at least partially) on human interactions with or in response to that
`same webpage.” Id. at 14. It is with that assertion that disagreement seems
`to emerge.
`The ’008 patent defines “issued data” as “data generated by a server
`or other computing device that is not the same as the computing device for
`which the assessment as to user status is being performed.” Ex. 1001, 3:33–
`37. In the Petition, Petitioner has identified, at least in part, the data
`generated by a server associated with a website as constituting data issued
`by the server, that is “the issued data” referenced in claim 1. See, e.g., Pet.
`11. It is apparent from the Petition, as also explained in Petitioner’s
`subsequent briefing, that Petitioner’s position is that data collected from one
`or more “webpages” of a website that is issued from a server associated with
`that website may constitute the “issued data” encompassed by the claim.
`See, e.g., Pet. Prelim. Reply 3. On this record, we agree with that position.
`In particular, it follows readily that such data, even if collected from more
`than one webpage of a website, is regarded reasonably as constituting “data
`generated by a server or other computing device that is not the same as the
`
`11
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`IPR2022-00940
`Patent 9,595,008 B1
`computing device for which the assessment as to user status is being
`performed.” Ex. 1001, 3:33–37.
`Accordingly, at this time, we determine that the reference to “the
`issued data” as a part of the claims of the ’008 patent is not somehow
`restricted to data generated by a server that emerges from only a single
`source, such as a single webpage of a website, as opposed to multiple data
`sources associated with the server of a website, e.g., multiple webpages.
`
`b) “single user instance”
`Patent Owner disputes Petitioner’s view that for “single user instance”
`a person of ordinary skill in the art would have understood the phrase to
`“include at least a session in which the client navigates among a website’s
`webpages.” Prelim. Resp. 19 (emphasis omitted). In that respect, similar to
`the discussion of “the issued data” above, Patent Owner appears to take issue
`with the premise that the phrase “single user instance” encompasses
`navigation of multiple webpages of a website. Instead, Patent Owner
`contends that the phrase “refers to a discrete attempt by a user to gain access
`to a single resource ‘protected from bots,’ such as a webpage.” Prelim.
`Resp. 19 (citing the declaration of Samuel Russ, Ph.D. (Ex. 2001) ¶¶ 76–77;
`Ex. 1001, 4:54–58)). Part and parcel with that contention is that “a single
`resource” must be only a “single webpage,” and, thus, “single user instance”
`does not encompass navigation of multiple webpages. Id. at 20–21.
`As noted by Petitioner, the term “single user instance” does not appear
`in the specification of the ’008 patent. The portion of the ’008 patent cited
`by Patent Owner (i.e., Ex. 1001, 4:54–58) describes simply an embodiment
`in which “a first layer of testing” includes assessment of mouse movements
`or key strokes for a user that is “attempting to access a server resource.”
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`Patent Owner does not meaningfully explain why that description provides
`illumination as to the meaning of “single user instance.” To that end,
`although the description refers to “a server resource,” left wanting is
`explanation why “a single resource” means only a single webpage to the
`exclusion, for instance, of a source that is a website and includes multiple
`webpages. Patent Owner also does not adequately articulate why a reference
`to “a first layer of testing” in connection with mouse movements and key
`strokes excludes such testing as a part of more than a single webpage.
`Dr. Russ’s cited testimony also echoes Patent Owner’s arguments, but
`provides little persuasive insight establishing a dichotomy between a website
`having multiple webpages and any of “a server resource,” “a first layer of
`testing,” and more importantly, a “single user instance.”
`
`c) remaining claim terms
`We determine that for the purposes of this Decision, it is unnecessary
`to expressly construe any other claim term. See Vivid Techs., Inc. v. Am. Sci.
`& Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (Only terms in
`controversy must be construed and only to the extent necessary to resolve
`the controversy); see also Nidec, 868 F.3d at 1017 (citing Vivid Techs in the
`context of an inter partes review).
`
`D. Ground Based on Willner Alone
`Petitioner contends that claims 1–3 and 6–18 are either anticipated or
`rendered obvious based on Willner. Pet. 6–27. Throughout its Preliminary
`Response, Patent Owner disputes Petitioner’s contentions.
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`Patent 9,595,008 B1
`1. Summary of Willner
`Willner is titled “Cursor Path Vector Analysis for Detecting Click
`Fraud.” Ex. 1005, code (54). Willner’s Abstract is reproduced below:
`A system and method for detecting click fraud where data
`is received corresponding to a tracking movement of a cursor on
`a web page. The movement of the cursor is associated with at
`least one vector. The at least one vector represents at least a
`portion of the cursor movement. A confidence level useable in
`the determination of click fraud is determined. The confidence
`level is responsive to analysis of the at least one vector
`representing at least a portion of the cursor movement.
`Id. at code (57).
`
`Willner’s Figures 2 and 3 are reproduced below:
`
`
`Figure 2 above shows a diagram of a web page illustrating a human-like
`cursor movement according to an embodiment. Id. ¶ 17. Figure 3 above is a
`diagram of a web page showing cursor movement resembling click fraud,
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`i.e., movement by a bot, according to an embodiment. Id. ¶ 18. The path
`traveled by a cursor (211 in Figure 2, 311 in Figure 3) may be mapped into
`vectors and analyzed to assess whether the cursor movement has been
`provided by a human operator or a bot. Id. ¶¶ 46–48. Willner explains the
`following:
`
`[I]n embodiments according to the present invention, the vectors
`associated with a journey to initiate a click may be stored as a
`linked list of vectors on a server hosting the web page associated
`with the click action. These vectors may each be associated with
`a storage or hash code, where the hash can be decoded to provide
`at least some identifying information about the vector. The
`journey to initiate a click can be decoded to provide at least some
`identifying information about the vector. The journey to initiate
`a click can then be represented as a sequence of hash codes.
`Subsequent clicks that implement analogous hash sequence
`patterns can then be dismissed as an automation tool attempting
`to simulate the actions of a user, as it would be extraordinarily
`difficult for an automation tool to implement code to derive
`unique and discernible user patterns that would map to an
`individualistic set of vectors.
`Ex. 1005 ¶ 38.
`
`2. Independent Claim 1
`Petitioner lays out in detail where it believes all the features of claim 1
`are found in Willner. Pet. 9–15. Patent Owner disagrees. Patent Owner
`first focuses its disagreement on step 1d) in claim 1. Prelim. Resp. 26–32.
`We also focus on that feature.
`a) Step 1d)
`Step 1d) reads “comparing the monitored data to model data relating
`to human interaction with or in response to the issued data.” Ex. 1001,
`5:46–48. As discussed above, “the issued data” is the data issued by the
`server to the client computing device. See § II.C.2.a. Petitioner points to
`
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`Willner’s disclosure of using stored vector data patterns as to cursor
`movement on a webpage. Pet. 11–12. In particular, Petitioner contends the
`following:
`
`Willner’s previously-stored vector data meet the claimed
`“model data relating to human interaction with or in response to
`the issued data.” The vector data were stored when previous uses
`(some of which may be human, e.g., “User A”) interacted with
`or in response to the webpage and monitoring markup/code (the
`claimed “issued data”) by clicking on advertisements.”
`Id. at 12 (citing Ex. 1005 ¶¶ 37–38; Ex. 1003 ¶ 80).
`
`Petitioner also contends the following:
`A [person of ordinary skill in the art] would have understood
`Willner ([0037]-[0038]) to describe that the previously stored
`vector data can be received by the website server which is
`physically
`remote
`from
`the users’ sample computing
`environments (e.g., workstations 101, 103) that access server 102
`via the Internet, or alternatively that this would have been the
`obvious way to implement what Willner describes.
`Id. (citing Ex. 1005, Fig. 1; Ex. 1003 ¶ 81).
`
`Patent Owner is of the view that “to demonstrate unpatentability of
`[step 1d)] [Petitioner] must demonstrate that Willner teaches comparing the
`mouse movement data to model data relating to human interactions with or
`in response to the same downloaded webpage (“the” alleged “issued data”).”
`Prelim. Resp. 27. Here and elsewhere in its Preliminary Response and PO
`Preliminary Sur-reply, Patent Owner places emphasis on its argument that
`the model data relating to human interaction with or in response to the issued
`data requires that the model data be generated from the singular “same”
`webpage on which the user interacts (e.g., “clicks”) to the apparent
`exclusion of data that may have been generated from some other webpage.
`See, e.g., Prelim. Resp. 29 (citing Ex. 2001 ¶¶ 93–99; PO Prelim. Sur-reply
`
`16
`
`
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`IPR2022-00940
`Patent 9,595,008 B1
`3. On this record, Patent Owner does not adequately connect its arguments
`to the plain language of claim 1 or suitably account for Willner’s disclosure.
`
`In particular, we note that claim 1 simply requires that a server issue
`data to a client computing device and that model data either relate to or be in
`response to that data that the server issued (i.e., “the issued data”). The ’008
`patent also explains that the issued data is data provided from a server to a
`different computing device for which the user status assessment is
`performed. See Ex. 1001, 3:33–37. Willner clearly discloses that a given
`website encompassing a server includes stored data indicative of vector
`patterns that are related to, or in response to, human interaction, and that
`such data is issued or provided to a different computing device where it is
`used as an assessment as to the presence of a human operator or bot. See,
`e.g., Ex. 1005 ¶¶ 37–38. At this time, we cannot discern why Willner’s
`disclosure in that respect does not account adequately for the pertinent
`requirements of claim 1, even if some of the involved model data may come
`from more than a single webpage. On this record, we conclude Petitioner’s
`contentions as to Willner’s disclosure in connection with step 1d) are
`persuasive. Further, at this time, we credit the testimony of Petitioner’s
`declarant, Dr. Lopresti (see, e.g., Ex. 1003 ¶¶ 78–83), over that of Patent
`Owner’s declarant, Dr. Russ (see, e.g., Ex. 2001 ¶¶ 93–99), as we conclude
`that Dr. Lopresti’s testimony is predicated on a better assessment of what
`claim 1 requires and of what Willner discloses.
`Moreover, we also take note of Petitioner’s position set forth in its
`Preliminary Reply Brief. In particular, even assuming that Patent Owner’s
`arguments surrounding a “same webpage” requirement are correct, we find
`Petitioner’s position on the matter set forth in its Preliminary Reply Brief to
`be persuasive. As Petitioner explains, even if, as Patent Owner asserts,
`
`17
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`IPR2022-00940
`Patent 9,595,008 B1
`claim 1 is viewed as requiring model data that is “at least partially” based on
`“the same webpage” that is being monitored, we agree with Petitioner that
`there is no requirement that the model data “must be based only on that one
`webpage.” Pet. Prelim. Reply Br. 3; Prelim. Resp. 14. Petitioner cogently
`explains that Willner “teach[es] that the publisher’s server stores vector data
`collected from user interactions with the webpages of the website that the
`server hosts, for subsequent comparison by that server in assessing
`interactions with any one of those monitored webpages of that same hosted
`website.” Pet. Reply Br. 3.
`
`Accordingly, we are persuaded by Petitioner on this record that
`Willner accounts adequately for step 1d).
`
`b) Remaining steps of claim 1
`We have considered the Petition’s proposed grounds based on
`Willner, and its supporting evidence, with respect to the remaining features
`of claim 1. See, e.g., Pet. 9–11, 14–15. Patent Owner does not present any
`separate arguments as to those remaining features. We conclude that, for
`purposes of instituting an inter partes review, Petitioner has accounted
`adequately for those remaining features.
`
`c) Conclusion—Claim 1
`We conclude that Petitioner has shown a reasonable likelihood of
`success in showing that claim 1 is unpatentable under § 102 and § 103 based
`on Willner.
`
`
`
`18
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`IPR2022-00940
`Patent 9,595,008 B1
`3. Claims 16 and 17
`Claims 16 and 17 are reproduced below:
`16. The method of claim 1 further comprising repeating
`a)-d) for a single user instance.
`17. The method of claim 1 further comprising repeating
`a)-d) for a single user instance until a predetermined value for
`d) is reached.
`Ex. 1001, 6:35–40.7
`
`Petitioner lays out in detail how it views claims 16 and 17 as
`accounted for by Willner’s disclosure. Pet. 24–26. With respect to
`the term “single user instance” Petitioner expresses that it includes “at
`least a session in which the client navigates among a website’s
`webpages,” and contends that a skilled artisan would have understood
`Willner’s disclosure as accounting for such a “single user instance.”
`Pet. 24–26 (citing Ex. 1003 ¶¶ 107–112). Patent Owner challenges
`Petitioner’s view on the theory that “a [person of ordinary skill in the
`art] would understand that ‘single user instance’ refers to a discrete
`attempt by a user to access a single protected resource (e.g., a
`webpage).” Prelim. Resp. 36 (citing Ex. 2001 ¶¶ 110–111). Patent
`Owner thus disputes that Willner satisfies a “single user instance”
`based on that proposed meaning.
`
`As discussed above, on this record, we are not satisfied that
`Patent Owner’s view on the meaning of “single user instance” is
`correct. See § II.C.2.b. We conclude that Petitioner accounts
`
`
`7 As discussed above, for purposes of this Decision, we regard the step
`lettering in claims 16 and 17 as having been shifted forward (e.g., steps a)–
`d) are understood to refer to steps b)–e) of claim 1). See § II.C.1.
`
`19
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`IPR2022-00940
`Patent 9,595,008 B1
`adequately for claims 16 and 17 and the recited “single user instance.”
`See Pet. 24–26.
`
`4. Claim 18
`Claim 18 recites “[t]he method of claim 1 further comprising
`repeating a)-c) and comparing the first instance of the value of d) to the
`second instance of the value of d).” Ex. 1001, 6:41–43.8
`With respect to claim 18, Petitioner contends the following
`Willner discloses or renders obvious repeating [1A]-[1E].
`In doing so, Willner compares hash values of first and second
`click movements, which are generated in the comparison of [1D].
`A [person of ordinary skill in the art] would further have been
`motivated to compare confidence values generated in
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